Federal Register / Vol. 74, No. 220 / Tuesday, November 17, 2009 / Rules and Regulations 59093 

2These comments are available on the 

Department’s Web site at: http://www.dol.gov/ebsa/ 

regs/cmt-investmentadvicefinalrule.html. 

1Section 404 of the Pension Protection Act of 

2006 (‘‘PPA 2006’’), Public Law 109–280, added 

sections 4022(g) and 4044(e) of ERISA, which 

provide that, when an underfunded plan terminates 

during the bankruptcy of the plan sponsor, the date 

the sponsor’s bankruptcy petition was filed is 

treated as the termination date of the plan for 

purposes of determining the amount of benefits 

PBGC guarantees and the amount of benefits in 

priority category 3 in the section 4044 asset 

allocation. These changes apply to plan 

terminations that occur during the bankruptcy of 

the plan sponsor if the bankruptcy filing date is on 

or after September 16, 2006. See PBGC proposed 

rule on Bankruptcy Filing Date Treated as Plan 

Termination Date for Certain Purposes, 73 FR 37390 

(Jul. 1, 2008). For convenience, this preamble 

generally will refer to the plan’s termination date, 

although in many cases this reference will instead 

apply to the bankruptcy filing date. 

letters.2 A number of these comments 

expressed the view that the final rules 

raise significant issues of law and 

policy. Among these, some expressed 

disagreement with the final rules’ 

interpretation of the statutory 

exemption, and further questioned the 

adequacy of the class exemption’s 

conditions in mitigating against the 

potential for investment adviser selfdealing. 

On March 20, 2009, the Department 

adopted the 60-day extension of the 

final rule’s effective and applicability 

date for agency review of questions of 

law and policy raised by commenters 

(74 FR 11847). On May 22, 2009, in 

order to afford the Department 

additional time to consider the issues 

raised by commenters, the Department 

adopted a further delay of these dates 

until November 18, 2009 (74 FR 23951). 

The Department believes that the 

complexity and significance of the 

issues involved justify delaying the 

effective and applicability dates of the 

final rule for an additional 180 days. 

This additional time will allow the 

Department to complete its analysis of 

the issues of law and policy and 

determine the appropriate steps to be 

taken. Accordingly, the Department is 

adopting herein a 180 day delay of the 

effective and applicability date of the 

final rule published on January 21, 

2009. With the adoption of this delay, 

the effective and applicability date of 

the final rule will be May 17, 2010. 

List of Subjects in 29 CFR Part 2550 

Employee benefit plans, Exemptions, 

Fiduciaries, Investments, Pensions, 

Prohibited transactions, Reporting and 

recordkeeping requirements, and 

Securities. 

■ For the reasons set forth above, the 

publication on January 21, 2009 (74 FR 

3822), of the final rule amending 29 CFR 

Part 2550, is further amended as 

follows: 

PART 2550—RULES AND 

REGULATIONS FOR FIDUCIARY 

RESPONSIBILITY 

■ 1. The authority citation for part 2550 

is revised to read as follows: 

Authority: 29 U.S.C. 1135; and Secretary 

of Labor’s Order No. 6–2009, 74 FR 21524 

(May 7, 2009). Secs. 2550.401b–1, 

2550.408b–1, 2550.408b–19, 2550.408g–1, 

and 2550.408g–2 also issued under sec. 102, 

Reorganization Plan No. 4 of 1978, 5 U.S.C. 

App. Sec. 2550.401c–1 also issued under 29 

U.S.C. 1101. Sections 2550.404c–1 and 

2550.404c–5 also issued under 29 U.S.C. 

1104. Sec. 2550.407c–3 also issued under 29 

U.S.C. 1107. Sec. 2550.404a–2 also issued 

under 26 U.S.C. 401 note (sec. 657(c)(2), Pub. 

L. 107–16, 115 Stat. 38, 136 (2001)). Sec. 

2550.408b–1 also issued under 29 U.S.C. 

1108(b)(1). Sec. 2550.408b–19 also issued 

under sec. 611(g)(3), Public Law 109–280, 

120 Stat. 780, 975 (2006). 

§ 2550.408g–1 [Amended] 

■ 2. Section 2550.408g–1 is amended by 

removing the date ‘‘November 18, 2009’’ 

and adding in its place ‘‘May 17, 2010’’ 

in paragraph (g). 

Signed at Washington, DC, this 10th day of 

November 2009. 

Phyllis C. Borzi, 

Assistant Secretary, Employee Benefits 

Security Administration, Department of 

Labor. 

[FR Doc. E9–27532 Filed 11–16–09; 8:45 am] 

BILLING CODE 4510–29–P 

PENSION BENEFIT GUARANTY 

CORPORATION 

29 CFR Parts 4001 and 4022 

RIN 1212–AB19 

USERRA Benefits Under Title IV of 

ERISA 

AGENCY: Pension Benefit Guaranty 

Corporation. 

ACTION: Final rule. 

SUMMARY: The Uniformed Services 

Employment and Reemployment Rights 

Act of 1994 (‘‘USERRA’’) provides that 

an individual who leaves his or her job 

to serve in the uniformed services is 

generally entitled to reemployment by 

his or her previous employer and, upon 

reemployment, to receive credit for 

benefits, including employee pension 

plan benefits, that would have accrued 

but for the employee’s absence due to 

the military service. This final rule 

amends PBGC’s regulation on Benefits 

Payable in Terminated Single-Employer 

Plans (29 CFR part 4022) to address a 

narrow but important issue regarding 

PBGC’s guarantee of benefits for 

participants who are serving in the 

uniformed services at the time that their 

pension plan terminates. Under PBGC’s 

existing regulations, a benefit is 

guaranteed only if the participant 

satisfies the conditions for entitlement 

to the benefit on or before the plan’s 

termination date. PBGC is providing an 

exception to this rule in the unique 

circumstances of persons serving in the 

uniformed services as of the plan’s 

termination date, consistent with 

USERRA’s statutory mandate to treat 

such persons, upon reemployment, as if 

they had never left the employ of their 

former employer. This final rule 

provides that so long as a service 

member is reemployed within the time 

limits set by USERRA, even if the 

reemployment occurs after the plan’s 

termination date, PBGC will treat the 

participant as having satisfied the 

reemployment condition as of the 

termination date. This will ensure that 

the pension benefits of reemployed 

service members, like those of other 

employees, would generally be 

guaranteed for periods up to the plan’s 

termination date. 

DATES: Effective December 17, 2009. 

(See Applicability in SUPPLEMENTARY

INFORMATION.) 

FOR FURTHER INFORMATION CONTACT: John 

H. Hanley, Director, or Constance 

Markakis, Attorney, Legislative and 

Regulatory Department, Pension Benefit 

Guaranty Corporation, Suite 12300, 

1200 K Street, NW., Washington, DC 

20005–4026, 202–326–4024. (TTY and 

TTD users may call the Federal relay 

service toll-free at 1–800–877–8339 and 

ask to be connected to 202–326–4024.) 

SUPPLEMENTARY INFORMATION: 

Background 

Pension Benefit Guaranty Corporation 

(‘‘PBGC’’) administers the singleemployer pension plan termination 

insurance program under Title IV of the 

Employee Retirement Income Security 

Act of 1974 (‘‘ERISA’’). When a covered 

plan terminates in either a distress 

termination under section 4041(c) of 

ERISA, or an involuntary termination 

(one initiated by PBGC) under section 

4042 of ERISA, PBGC typically becomes 

statutory trustee of the plan with 

responsibility for paying benefits in 

accordance with the provisions of Title 

IV. 

The amount of benefits paid by PBGC 

under a terminated, trusteed plan is 

generally determined as of the plan’s 

termination date.1 Under section 

4022(a) of ERISA, PBGC guarantees the 

payment of nonforfeitable benefits 


jlentini on DSKJ8SOYB1PROD with RULES
59094 Federal Register / Vol. 74, No. 220 / Tuesday, November 17, 2009 / Rules and Regulations 

2ERISA section 4022(e) provides that a qualified 

preretirement survivor annuity under a singleemployer plan is not treated as forfeitable solely 

because the participant has not died as of the 

termination date. 

3Terms used in this final rule, such as ‘‘service 

in the uniformed services,’’ are intended to have the 

meaning provided under USERRA and the 

Department of Labor regulations implementing 

USERRA. For convenience, this preamble 

sometimes uses the term ‘‘military service’’ as 

shorthand for ‘‘service in the uniformed services.’’ 

4Consistent with this principle of treating a 

reemployed service member as if his or her 

employment had not been interrupted by military 

service, DOL’s final rule requires that any 

preparation time before entering military service or 

recuperation time (or period of hospitalization or 

convalescence) after completing service before 

reporting back to work, to the extent permitted by 

USERRA, be treated as continuous service with the 

employer upon reemployment for purposes of 

determining the employee’s pension entitlement. 20 

CFR 1002.259; see 70 FR at 75276. 

5A service member who meets five eligibility 

criteria is entitled to be reemployed: The employee 

is absent from employment by reason of service in 

the uniformed services; the employee gives advance 

notice of the service; the employee has five years 

or less of cumulative service in the uniformed 

services with respect to the employment 

relationship with the employer; the service member 

makes a timely return to, or application for 

reinstatement in, his or her employment after 

completing service; and the employee receives an 

honorable discharge from service. 38 U.S.C. 

4312(a)–(c). There are three statutory defenses that 

an employer may assert against a claim for USERRA 

benefits; the employer bears the burden of proving 

these defenses. 38 U.S.C. 4312(d). 

6The Heroes Earnings Assistance and Relief Tax 

Act of 2008 (‘‘HEART’’) amended the Internal 

Revenue Code with respect to the provision of 

certain benefits under an employee pension benefit 

plan for participants who die or become disabled 

while performing qualified military service. 26 

U.S.C. 401(a)(37); 26 U.S.C. 414(u)(9). PBGC may 

provide additional guidance in the future regarding 

HEART provisions under Title IV. 

under the plan, subject to the 

limitations of section 4022(b), as of the 

date the plan terminates. Under § 4022.3 

of PBGC’s regulation on Benefits 

Payable in Terminated Single-Employer 

Plans, PBGC guarantees the amount, as 

of the termination date, of a benefit 

provided under the plan (subject to 

certain limitations) if ‘‘the benefit is, on 

the termination date, a nonforfeitable 

benefit.’’ To be guaranteed, the benefit 

must also qualify as a pension benefit as 

defined in § 4022.2, and the participant 

must be entitled to the benefit under 

§ 4022.4. The amount of any additional 

nonguaranteed benefits payable from 

the plan’s assets under section 4044 or 

PBGC’s recoveries under section 4022(c) 

of ERISA is also determined as of the 

termination date. 

Section 4001(a)(8) of ERISA and 

§ 4001.2 define a ‘‘nonforfeitable 

benefit’’ with respect to a plan as: 

A benefit for which a participant has satisfied 

the conditions for entitlement under the plan 

or the requirements of this Act (other than 

the submission of a formal application, 

retirement, completion of a required waiting 

period, or death in the case of a benefit 

which returns all or a portion of a 

participant’s accumulated mandatory 

employee contributions upon the 

participant’s death), whether or not the 

benefit may subsequently be reduced or 

suspended by a plan amendment, an 

occurrence of any condition, or operation of 

this Act or the Internal Revenue Code of 

1986. 

Guaranteed benefits under Title IV of 

ERISA are benefits with respect to 

which a participant has satisfied the 

conditions for entitlement under the 

plan as of the termination date. 

Therefore, plan benefits such as an early 

retirement subsidy or disability 

retirement benefit with respect to which 

a participant has not satisfied the 

conditions for entitlement (e.g., a yearsof-service requirement or the onset of 

disability) as of the termination date are 

not guaranteed.2

On July 29, 2009 (at 74 FR 37666), 

PBGC published in the Federal Register 

a proposed rule to address the 

interaction of Title IV’s requirement that 

benefits be nonforfeitable on the 

termination date in order to be 

guaranteed with the rights of 

reemployed service members in their 

employee pension benefit plans under 

the Uniformed Services Employment 

and Reemployment Rights Act of 1994 

(‘‘USERRA’’), Public Law 103–353 

(October 13, 1994). PBGC received no 

public comments on the proposed rule 

and the final regulation is unchanged 

from the proposed regulation. 

Congress enacted USERRA to protect 

certain rights and benefits of employees 

who voluntarily or involuntarily leave 

civilian employment to serve in the 

uniformed services.3 Under USERRA, 

returning service members are generally 

entitled to reemployment in their preservice positions, with the status, pay, 

and benefits to which they would have 

been entitled had they not served in the 

uniformed services. The stated purposes 

of USERRA are— 

• To encourage noncareer service in 

the uniformed services by eliminating or 

minimizing the disadvantages to 

civilian careers and employment which 

can result from such service, 

• To minimize the disruption to the 

lives of persons performing service in 

the uniformed services as well as to 

their employers, their fellow employees, 

and their communities, by providing for 

the prompt reemployment of such 

persons upon their completion of such 

service under honorable conditions, and 

• To prohibit discrimination against 

persons because of their service in the 

uniformed services. 

38 U.S.C. 4301. The provisions of 

USERRA are generally effective with 

respect to reemployments initiated on or 

after December 12, 1994. 

The Department of Labor (‘‘DOL’’) 

issued a final rule on USERRA, 70 FR 

75246 (Dec. 19, 2005). The preamble to 

that rule states that, in construing 

USERRA and its implementing 

regulations, DOL intends to ‘‘apply with 

full force and effect’’ the interpretive 

maxim of the Supreme Court in 

Fishgold v. Sullivan Drydock and Repair 

Corp., 328 U.S. 275, 285 (1946), that 

legislation on reemployment rights for 

service members ‘‘is to be liberally 

construed for the benefit of those who 

left private life to serve their country in 

its hour of great need. * * *’’ 70 FR 

75246. 

DOL’s final regulation on USERRA, 

codified at 20 CFR part 1002, covers 

various types of military training and 

service. Section 1002.6 provides: 

USERRA’s definition of ‘‘service in the 

uniformed services’’ covers all categories of 

military training and service, including duty 

performed on a voluntary or involuntary 

basis, in time of peace or war. Although most 

often understood as applying to National 

Guard and reserve military personnel, 

USERRA also applies to persons serving in 

the active components of the Armed Forces. 

Certain types of service specified in 42 U.S.C. 

300hh–11 by members of the National 

Disaster Medical System are covered by 

USERRA. 

USERRA establishes specific rights for 

reemployed service members in their 

employee pension benefit plans. Each 

period of service performed by an 

individual in the uniformed services is 

deemed, upon reemployment, to 

constitute service with the employer(s) 

maintaining the plan for purposes of 

determining participation, vesting, and 

accrual of benefits under the plan. 38 

U.S.C. 4318(a)(2)(A) and (B); 20 CFR 

1002.259. As explained in the preamble 

to DOL’s final rule implementing 

USERRA, the reemployed service 

member is treated for pension purposes 

under the plan as though he or she had 

remained continuously employed. 70 

FR at 75280.4

Entitlement to pension credit arises 

only where the returning service 

member is reemployed by his or her preservice employer.5 There is no 

entitlement to pension credit in cases in 

which an employee permanently and 

lawfully loses reemployment rights—for 

example, where an employee dies 

during the period of military service 

(however, see recent changes to the 

Internal Revenue Code 6), where an 

employer is excused from its 

reemployment obligations based on a 

statutory defense or where an employee 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 74, No. 220 / Tuesday, November 17, 2009 / Rules and Regulations 59095 

7USERRA contains a broad prohibition against 

waivers of statutory rights. The preamble to DOL’s 

regulation on USERRA provides that an employee 

cannot waive USERRA’s right to reemployment 

until that right has matured, i.e., until the period 

of service is completed. 70 FR at 75257. 

8Under the final regulation, as explained below, 

such benefits would be in priority category 4 

(covering guaranteed benefits) if the reemployment 

occurs after the plan’s termination date and if all 

other conditions are met. These benefits thus would 

continue to be part of benefit liabilities that would 

have to be provided in a standard termination. 

elects not to seek reemployment within 

the specified time frame.7 38 U.S.C. 

4312(d)(1); see 70 FR at 75280. Plan 

termination, however, is not identified 

as a circumstance that results in a 

permanent and lawful loss of 

reemployment rights for purposes of 

computing an employee’s pension 

entitlement. 

In the case of a standard termination, 

under ERISA section 4041(b)(1)(D) and 

§ 4041.28(a) of PBGC’s regulation on 

Termination of Single-Employer Plans, 

plan assets must satisfy all plan benefits 

through priority category 6 under 

section 4044 of ERISA. Priority category 

6 includes benefits that, as of the 

termination date, are conditioned on a 

future event. Accordingly, even without 

these regulatory changes, a plan 

terminating in a standard termination 

must provide benefits relating to periods 

of military service through the 

termination date for participants who 

become reemployed in accordance with 

USERRA provisions, even if such 

reemployment occurs after the plan’s 

termination date.8

Section 4312(f) of USERRA describes 

the information that a service member 

must submit to an employer in order to 

establish that the individual meets the 

statutory requirement for 

reemployment, including information 

establishing that the individual’s 

application for reemployment is timely; 

that he or she has not exceeded the fiveyear military service limitation; and that 

the type of separation from military 

service does not disqualify the 

individual from reemployment. 

Regulatory Changes 

Under USERRA, an individual who is 

reemployed following military service is 

entitled to the pension benefits that he 

or she would have earned if he or she 

had remained continuously employed. 

As noted above, Title IV of ERISA 

provides that, for a benefit to be 

nonforfeitable, the conditions for 

entitlement to the benefit must be 

satisfied on or before the plan’s 

termination date. In order to harmonize 

the significant federal mandate to 

protect service members’ rights and 

benefits under USERRA with Title IV’s 

rules on nonforfeitable benefits, PBGC is 

amending its regulation on Benefits 

Payable in Terminated Single-Employer 

Plans. This amendment provides that a 

participant will be deemed to have 

satisfied the reemployment condition 

for entitlement to the benefit as of the 

plan’s termination date, for purposes of 

PBGC’s guarantee, if PBGC determines, 

based on a demonstration by the 

participant or otherwise, that he or she 

became reemployed and entitled to the 

restoration of the pension benefit 

pursuant to USERRA, even if the 

reemployment occurred after the plan’s 

termination date. Thus, for example, if 

a participant had 14 years of pension 

service at the time he or she entered 

military service, and had spent one year 

in the military as of the plan’s 

termination date, the participant will be 

considered to have 15 years of service, 

for guarantee purposes, so long as he or 

she returns to his or her former 

employment within the bounds set by 

USERRA. 

When a plan termination occurs 

during the bankruptcy of the plan 

sponsor, PBGC treats the bankruptcy 

filing date as the plan’s termination date 

for certain purposes (see note 1). New 

§ 4022.11 includes a provision that 

applies this concept to USERRA 

benefits. For example, if a participant is 

performing military service as of the 

bankruptcy filing date, any benefit 

relating to the period of military service 

that is accrued and vested through the 

bankruptcy filing date will be 

considered nonforfeitable if the 

participant becomes reemployed 

pursuant to USERRA after the 

bankruptcy filing date. 

PBGC will provide guidance on how 

individuals can establish, for purposes 

of their Title IV benefit, their 

entitlement to benefits under USERRA. 

Persons with questions about these 

benefits should contact PBGC’s Benefits 

Administration and Payment 

Department. 

PBGC emphasizes that the regulatory 

changes are very narrow, applying only 

to the unique circumstances presented 

by federal statutes affording special 

protection to the men and women 

serving the nation in the uniformed 

services. Except as provided in this 

amendment, a benefit will be treated as 

nonforfeitable only if all conditions for 

entitlement to the benefit have been 

satisfied on or before the termination 

date. This includes benefits such as 

disability benefits, subsidized early 

retirement benefits (e.g., ‘‘30 and out’’ 

benefits), and benefits that may be 

similar in certain respects to the benefits 

covered by this amendment, such as a 

benefit conditioned on an employee’s 

being reemployed after a period of 

layoff. 

Applicability 

The amendments made by this final 

rule will apply to reemployments under 

USERRA initiated on or after December 

12, 1994. Starting December 17, 2009, 

PBGC will begin adjusting final benefit 

determinations of affected participants 

and make back payments with interest. 

Compliance With Rulemaking 

Guidelines 

PBGC has determined, in consultation 

with the Office of Management and 

Budget, that this final rule is not a 

‘‘significant regulatory action’’ under 

Executive Order 12866. 

Regulatory Flexibility Act 

PBGC certifies under section 605(b) of 

the Regulatory Flexibility Act (5 U.S.C. 

601 et. seq.) that the amendments in this 

final rule will not have a significant 

economic impact on a substantial 

number of small entities. The 

amendments harmonize the 

requirements of USERRA with the 

nonforfeitable benefits requirements of 

Title IV of ERISA. Virtually all of the 

amendments affect only PBGC and 

persons who receive benefits from 

PBGC. Accordingly, as provided in 

section 605 of the Regulatory Flexibility 

Act, sections 603 and 604 do not apply. 

List of Subjects 

29 CFR Part 4001 

Pensions. 

29 CFR Part 4022 

Pension insurance, Pensions. 

■ For the reasons given above, PBGC is 

amending 29 CFR parts 4001 and 4022 

as follows. 

PART 4001—TERMINOLOGY 

■ 1. The authority citation for part 4001 

continues to read as follows: 

Authority: 29 U.S.C. 1301, 1302(b)(3). 

■ 2. In § 4001.2, add a new definition in 

alphabetical order to read as follows: 

§ 4001.2 Definitions. 

* * * * * 

PPA 2006 bankruptcy termination 

means a plan termination to which 

section 404 of the Pension Protection 

Act of 2006 applies. Section 404 of the 

Pension Protection Act of 2006 applies 

to any plan termination in which the 

termination date occurs while 

bankruptcy proceedings are pending 

with respect to the contributing sponsor 

of the plan, if the bankruptcy 

proceedings were initiated on or after 


jlentini on DSKJ8SOYB1PROD with RULES
59096 Federal Register / Vol. 74, No. 220 / Tuesday, November 17, 2009 / Rules and Regulations 

1 ‘‘Administrative ruling’’ is the title FinCEN uses 

to represent documents commonly referred to as 

interpretative rules. 

2FinCEN’s criteria for determining whether a 

particular ruling will be published is located under 

the heading ‘‘Rulings’’ on the FinCEN Web site at 

http://www.fincen.gov. 

3 31 U.S.C. 5311. 

4See Treasury Order 180–01 (Sept. 26, 2002). 

5The Office of Financial Enforcement originally 

had authority to issue regulations implementing the 

BSA. In 1994, the Treasury Department merged the 

Office of Financial Enforcement with FinCEN and 

granted FinCEN the authority to implement the 

BSA. 

6See 52 FR 35545 (Sep. 22, 1987) (final rule 

instituting an administrative ruling system). 

7 If the subject situation is hypothetical, it must 

include ‘‘a statement justifying why the particular 

situation described warrants the issuance of a 

ruling.’’ 31 CFR 103.81(6). 

September 16, 2006. Bankruptcy 

proceedings are pending, for this 

purpose, if a contributing sponsor has 

filed or has had filed against it a petition 

seeking liquidation or reorganization in 

a case under title 11, United States 

Code, or under any similar Federal law 

or law of a State or political subdivision, 

and the case has not been dismissed as 

of the termination date of the plan. 

* * * * * 

PART 4022—BENEFITS PAYABLE IN 

TERMINATED SINGLE–EMPLOYER 

PLANS 

■ 3. The authority citation for part 4022 

continues to read as follows: 

Authority: 29 U.S.C. 1302, 1322, 1322b, 

1341(c)(3)(D), and 1344. 

■ 4. In § 4022.2, amend the first 

paragraph by removing the words ‘‘plan 

year, proposed termination date, 

substantial owner’’ and adding in their 

place ‘‘plan year, PPA 2006 bankruptcy 

termination, proposed termination date, 

statutory hybrid plan, substantial 

owner.’’ 

■ 5. Add new § 4022.11 to subpart A to 

read as follows: 

§ 4022.11 Guarantee of benefits relating to 

uniformed service. 

This section applies to a benefit of a 

participant who becomes reemployed 

after service in the uniformed services 

that is covered by the Uniformed 

Services Employment and 

Reemployment Rights Act of 1994 

(USERRA). 

(a) A benefit described in paragraph 

(b) of this section that would satisfy the 

requirements of § 4022.3(a) and (c) 

(together with any benefit earned for the 

period preceding military service) 

except for the fact that the participant 

was not reemployed on or before the 

termination date will be deemed to 

satisfy those requirements if PBGC 

determines, based upon a demonstration 

by the participant or otherwise, that he 

or she became reemployed after the 

termination date and entitled to the 

benefit under USERRA. 

(b) A benefit described in this 

paragraph (b) is a benefit attributable to 

a period of service commencing before 

the termination date and ending on the 

termination date during which the 

participant was serving in the 

uniformed services as defined in 38 

U.S.C. 4303(13) (or was in a subsequent 

reemployment eligibility period) and to 

which the participant is entitled under 

USERRA. 

(c) Example: A plan’s vesting 

requirement is 5 years of service with 

the employer. A participant has 

completed 4 years of service when he 

leaves employment for uniformed 

service. The plan terminates while the 

participant is in military service. As of 

the termination date, the participant 

would have had 5 years of service and 

5 years of benefit accruals if he had 

remained continuously employed. Upon 

reemployment after the termination date 

but within the time limits set by 

USERRA, the participant would have 

had 6 years of service under the plan for 

vesting and benefit accrual purposes, if 

the plan had not terminated. PBGC 

would treat the participant as having a 

vested, nonforfeitable plan benefit with 

5 years of vesting service and benefit 

accruals as of the termination date. 

(d) In the case of a PPA 2006 

bankruptcy termination, ‘‘bankruptcy 

filing date’’ is substituted for 

‘‘termination date’’ each place that 

‘‘termination date’’ appears in this 

section. 

Issued in Washington, DC, this 10th day of 

November 2009. 

Vincent K. Snowbarger, 

Acting Director, Pension Benefit Guaranty 

Corporation. 

Issued on the date set forth above pursuant 

to a resolution of the Board of Directors 

authorizing publication of this final rule. 

Judith R. Starr, 

Secretary, Board of Directors, Pension Benefit 

Guaranty Corporation. 

[FR Doc. E9–27573 Filed 11–16–09; 8:45 am] 

BILLING CODE 7709–01–P 

DEPARTMENT OF THE TREASURY 

31 CFR Part 103 

RIN 1506–AB03 

Financial Crimes Enforcement 

Network; Amendment to the Bank 

Secrecy Act Regulations— 

Administrative Ruling System 

AGENCY: Financial Crimes Enforcement 

Network (‘‘FinCEN’’), Treasury. 

ACTION: Final rule. 

SUMMARY: FinCEN is issuing this final 

rule to amend the procedures for 

publicly issuing an administrative 

ruling1 relating to the Bank Secrecy Act 

(‘‘BSA’’). Reliance on these 

administrative rulings is limited to 

persons who are similarly situated to 

the original recipient of an applicable 

administrative ruling. To disseminate its 

interpretations in a more timely and 

efficient manner, FinCEN will use its 

website to make these administrative 

rulings available to the public.2

DATES: Effective Date: December 17, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

Regulatory Policy and Programs 

Division, FinCEN (800) 949–2732 and 

select option 6. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. Statutory and Regulatory Background 

The BSA, Titles I and II of Public Law 

91–508, as amended, codified at 12 

U.S.C. 1829b, 1951–1959, and 31 U.S.C. 

5311–5314 and 5316–5332, authorizes 

the Secretary of the Treasury (the 

‘‘Secretary’’), among other things, to 

issue regulations requiring financial 

institutions to keep records and file 

reports that the Secretary determines 

‘‘have a high degree of usefulness in 

criminal, tax, or regulatory 

investigations or proceedings, or in the 

conduct of intelligence or 

counterintelligence matters, including 

analysis, to protect against international 

terrorism.’’ 3 The Secretary’s authority to 

administer the BSA and its 

implementing regulations has been 

delegated to the Director of FinCEN.4

FinCEN has interpreted the BSA 

through implementing regulations that 

appear at 31 CFR Part 103. 

In 1987, the Department of the 

Treasury’s Office of Financial 

Enforcement 5 established an 

administrative ruling system to ensure 

uniform guidance and effective and 

efficient dissemination of official 

Treasury interpretations of the BSA.6

The administrative ruling system was 

designed to: provide financial 

institutions with binding ruling 

interpretations of Part 103; and to 

provide interpretations of hypothetical 

situations.7 31 CFR 103.85 requires that 

the interpretations intended to have 

precedential value be published 

periodically in the Federal Register and 

yearly in the Appendix to Part 103. 


jlentini on DSKJ8SOYB1PROD with RULES