Title IV Treatment of Rollovers From Defined Contribution Plans to Defined Benefit Plans, 70090-70095 [2014-27826]

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SUPPLEMENTARY INFORMATION: Executive Summary Purpose of the Regulatory Action PENSION BENEFIT GUARANTY CORPORATION This regulatory action is needed to provide guidance on treatment of benefits resulting from a rollover distribution from a defined contribution plan to a defined benefit plan, where the defined benefit plan is terminated and trusteed by the Pension Benefit Guaranty Corporation (PBGC). Legal authority for this action comes from section 4002(b)(3) of the Employee Retirement Income Security Act of 1974 (ERISA), which authorizes PBGC to issue regulations to carry out the purposes of Title IV of ERISA, section 4022 of ERISA (Single-Employer Plan Benefits Guaranteed), and section 4044 of ERISA (Allocation of Assets). 29 CFR Parts 4001, 4022, and 4044 Major Provisions of the Regulatory Action Dated: November 18, 2014. Joseph T. Rannazzisi, Deputy Assistant Administrator. [FR Doc. 2014–27917 Filed 11–24–14; 8:45 am] BILLING CODE 4410–09–P RIN 1212–AB23 Title IV Treatment of Rollovers From Defined Contribution Plans to Defined Benefit Plans Pension Benefit Guaranty Corporation. ACTION: Final rule. AGENCY: In April 2014, PBGC proposed to amend its regulations to clarify the treatment of benefits resulting from a rollover distribution from a defined contribution plan to a defined benefit plan, if the defined benefit plan was terminated and trusteed by PBGC. Under the proposal, a benefit resulting from rollover amounts generally would not be subject to PBGC’s maximum guaranteeable benefit or phase-in limitations and would be in the second highest priority category of benefits in the allocation of assets. PBGC is now finalizing that proposal. Except for making minor clarifications suggested by commenters, the final regulation is the same as the proposed regulation. This rulemaking is part of PBGC’s efforts to enhance retirement security by promoting lifetime income options. DATES: Effective December 26, 2014. See Applicability in SUPPLEMENTARY INFORMATION. wreier-aviles on DSK4TPTVN1PROD with RULES SUMMARY: FOR FURTHER INFORMATION CONTACT: Catherine B. Klion (klion.catherine@ pbgc.gov), Assistant General Counsel, Office of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K VerDate Sep<11>2014 14:24 Nov 24, 2014 Jkt 235001 Under the final regulation, a benefit resulting from rollover amounts generally will be in the second highest priority category among various classes of benefits in the allocation of assets and generally will not be subject to PBGC’s maximum guaranteeable benefit or phase-in limitations. Background PBGC administers the singleemployer pension plan termination insurance program under Title IV of ERISA. The program covers privatesector, single-employer defined benefit plans, for which premiums are paid to PBGC each year. Covered plans that are underfunded may terminate either in a distress termination under section 4041(c) of ERISA or in an involuntary termination (one initiated by PBGC) under section 4042 of ERISA. When such a plan terminates, PBGC typically is appointed statutory trustee of the plan, and becomes responsible for paying benefits in accordance with the provisions of Title IV. At times, plans trusteed by PBGC include contributions made by employees that fund part of the benefit under the plan. Mandatory Contributions A plan may be funded in whole or in part by mandatory contributions. Under section 4044(b)(6) of ERISA, the term ‘‘mandatory contributions’’ means amounts contributed to the plan by a participant that are required as a condition of employment, as a condition PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 of participation in such plan, or as a condition of obtaining benefits under the plan attributable to employer contributions. Typically, mandatory employee contributions are required under the plan as a percentage of the employee’s compensation. They are withheld from the salary of the employee by the employer and deposited to the employee’s credit in the defined benefit plan on an after-tax basis.1 Such mandatory employee contributions have generally been used to fund a portion of the participant’s accrued benefit as determined under the plan’s benefit formula and are required in order to receive the portion of the accrued benefit derived from employer contributions. Section 411(c)(2)(B) of the Code 2 provides that, in the case of a defined benefit plan, the accrued benefit derived from mandatory employee contributions is equal to the employee’s contributions accumulated to normal retirement age using specified rates under section 411(c)(2)(C), and converted to an actuarially equivalent annuity commencing at normal retirement age, using an interest rate under section 417(e)(3) of the Code as of the determination date. Section 411(c)(1) of the Code provides that an employee’s accrued benefit derived from employer contributions as of any date is the excess, if any, of the accrued benefit for the employee as of that date over the accrued benefit derived from contributions made by the employee as of that date. PBGC Treatment of Mandatory Employee Contributions in Terminated Plans When a plan terminates in a distress termination or an involuntary termination, each participant’s plan benefit is assigned to one or more of six ‘‘priority categories’’ that are described in paragraphs (1) through (6) of section 4044(a) of ERISA.3 Participants’ accrued 1 Generally, contributions by employees to defined benefit plans (whether mandatory or voluntary) are not deductible for federal income tax purposes. 2 See also ERISA section 204(c)(2)(B). References to the Code in this preamble should be read to include the parallel provision under ERISA. 3 Plan assets must be allocated to each priority category in succession, beginning with priority category one (PC1). The benefits assigned to each priority category under section 4044 of ERISA in general are as follows: • PC1: The portion of a participant’s accrued benefit derived from the participant’s voluntary contributions. • PC2: The portion of a participant’s accrued benefit derived from the participant’s mandatory contributions. E:\FR\FM\25NOR1.SGM 25NOR1 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations benefits derived from mandatory employee contributions are assigned to PC2. Because benefits in PC2 have a higher claim on plan assets than nearly all other benefits under the plan, when an underfunded plan terminates, plan assets are usually (but not always) sufficient to pay accrued benefits derived from mandatory employee contributions. Although PBGC generally pays benefits only in annuity form, PBGC’s regulations allow a return of mandatory employee contributions in a single installment (or a series of installments), provided certain conditions are met (see § 4022.7(b)(2)). wreier-aviles on DSK4TPTVN1PROD with RULES Rollover Benefits Under the Code and Treasury/IRS Guidance Section 401(a)(31) of the Code requires a qualified plan to permit a distributee of any eligible rollover distribution to elect a direct rollover of any part of the distribution to an eligible retirement plan. Section 402(c) of the Code permits an individual receiving an eligible rollover distribution from a qualified plan to elect to roll over any portion of that distribution within a specified time to an eligible retirement plan that accepts the rollover (including a defined benefit plan). On February 21, 2012, the Department of the Treasury (Treasury) and the Internal Revenue Service (IRS) issued Rev. Rul. 2012–4,4 which clarified certain qualification requirements under section 401(a) of the Code for use of rollover amounts to provide an additional benefit under a defined benefit plan. Under the facts of the example provided in Rev. Rul. 2012–4, a qualified defined benefit plan provides that it will accept a direct rollover of a distribution from a qualified defined contribution plan maintained by the same employer for an employee or former employee of the employer who separates from service after age 55 with at least 10 years of service and elects to commence an immediate annuity of the employee’s benefit under the plan (including the • PC3: The portion of a participant’s benefit that was in pay status as of the beginning of the threeyear period ending on the termination date (or bankruptcy filing date, if applicable), or that would have been in pay status at the beginning of such three-year period if the participant had retired before the beginning of such three-year period, provided that the benefit was the lowest benefit payable under the plan provisions at any time during the period beginning five years before the termination date (or bankruptcy filing date, if applicable) and ending on the termination date. • PC4: All other guaranteed benefits. • PC5: All other nonforfeitable benefits. • PC6: All other benefits. 4 2012–8 I.R.B. 386, http://www.irs.gov/irb/201208_IRB/ar08.html. VerDate Sep<11>2014 14:24 Nov 24, 2014 Jkt 235001 additional benefit resulting from the direct rollover). Rev. Rul. 2012–4 treats the amounts rolled over as mandatory employee contributions for purposes of section 411(c) of the Code. The revenue ruling further provides that, if the plan provided an annuity with respect to the rollover in excess of the amount determined under the rules of section 411(c) of the Code, such as by using a more favorable actuarial conversion basis than required by those rules, the portion of the benefit resulting from the rollover amounts that exceeded the benefit derived from mandatory employee contributions as determined under section 411(c)(2) of the Code would be subject to the requirements applicable to a benefit attributable to employer contributions. The revenue ruling states that in this case, the liability for the total benefit resulting from the rollover (including the portion of the accrued benefit considered to be derived from employer contributions because it exceeds the amount determined under section 411(c)(2)(B)) would likely exceed the amounts rolled over, which means that the employer will become responsible for additional funding costs. Rev. Rul. 2012–4 states (in footnote 1) that PBGC is developing guidance on the Title IV treatment of benefits under a defined benefit plan resulting from a rollover. This final rule is that guidance.5 PBGC is amending its regulations to provide guidance on Title IV treatment of rollovers, both in anticipation of increased use of rollovers, and as part of its efforts to promote retirement security. The availability of a rollover of a participant’s retirement savings in a 401(k) or other defined contribution plan to a defined benefit plan expands the opportunities for participants to elect lifetime annuity options. Proposed Rule On April 2, 2014 (at 79 FR 18483), PBGC published a proposed rule on Title IV treatment of rollovers. PBGC received comments from the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO), the American Council of Life Insurers 5 The facts of the example in Rev. Rul. 2012–4 involve an employee who separates from service after age 55 with at least ten years of service and elects to commence an immediate annuity and rolls over a benefit from a defined contribution plan to a defined benefit plan maintained by the same employer. However, rollovers are permitted in broader circumstances. This final rule is not limited to the facts in the example. PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 70091 (ACLI), and AARP.6 The commenters all supported the proposed rule and PBGC’s efforts to promote lifetime income options. In response to the comments, the final regulation makes the following clarifications: • The amendments in this final rule apply only to rollovers from defined contribution plans. See § 4001.2 (definition of rollover amounts). • Rollover amounts include both salary deferral contributions made by the participant, any additional employer contributions provided for under the defined contribution plan, and earnings on both. See § 4001.2 (definition of rollover amounts). • The annuity benefit resulting from a rollover amount is a pension benefit (and thus guaranteeable). See § 4022.2 (definition of pension benefit). Except for these clarifications, the final regulation is the same as the proposed regulation. Overview of Final Regulation PBGC is amending its regulations on Benefits Payable in Terminated SingleEmployer Plans (29 CFR part 4022) and Allocation of Assets in Single-Employer Plans (29 CFR part 4044). The amendments establish or clarify the rules for treatment of rollovers from a defined contribution plan to a defined benefit plan, when the defined benefit plan later terminates in an underfunded status. Following are the most important changes: • A benefit resulting from rollover amounts will be treated as an accrued benefit derived from mandatory employee contributions in PC2 (which has a higher claim on plan assets than nearly all other benefits under the plan), to the extent that the benefit is determined using the rules of Code section 411(c)(2)(B). • Unlike other PC2 benefits, a PC2 benefit resulting from rollover amounts will generally not be payable in lump sum form. • The portion of a benefit resulting from rollover amounts that exceeds the accrued benefit derived from mandatory employee contributions (i.e., the portion derived from employer contributions) will be a guaranteeable benefit in PC3, PC4, or PC5, as applicable. • A participant’s accrued benefit resulting from rollover amounts generally will not be subject to PBGC’s maximum guaranteeable benefit limitation under section 4022(b) of ERISA and thus will not be taken into 6 The comments can be found at http:// www.pbgc.gov/documents/Comments-to-PBGC-onTitle-IV-Rollover-Treatment.pdf. E:\FR\FM\25NOR1.SGM 25NOR1 70092 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations account in applying that limitation. However, the maximum guaranteeable benefit limitation will apply to any benefit resulting from a rollover amount that exceeds the accrued benefit treated as derived from mandatory employee contributions (i.e., the accrued benefit attributable to employer contributions). • A participant’s accrued benefit resulting from rollover amounts generally will not be subject to the fiveyear phase-in limitation on the guarantee of benefit increases. However, the phase-in limitation will apply to any benefit resulting from a rollover amount that exceeds the accrued benefit treated as derived from mandatory employee contributions, with the phase-in period beginning as of the date the rollover contribution was received by the plan. A detailed discussion of the final regulation follows. wreier-aviles on DSK4TPTVN1PROD with RULES Regulatory Changes Guaranteed Benefits Under section 4022 of ERISA, PBGC guarantees the payment of all nonforfeitable benefits provided by a plan, subject to two principal statutory limitations—the maximum guaranteeable benefit limitation and the five-year phase-in limitation. The amount of the maximum monthly guarantee is set by law and is updated each calendar year. The maximum guaranteeable benefit applicable to a plan is fixed as of that plan’s termination date. Under the Pension Protection Act of 2006, if a plan terminates during a plan sponsor’s bankruptcy and the sponsor entered bankruptcy on or after September 16, 2006, the maximum guaranteeable benefit is fixed as of the date the sponsor entered bankruptcy. The five-year phase-in limitation generally applies to a benefit increase that has been in effect for less than five years. Generally, 20 percent of a benefit increase is guaranteed after one year, 40 percent after two years, etc., with full phase-in of the guarantee after five years. If the amount of the monthly benefit increase is below $100, the annual rate of phase-in is $20 rather than 20 percent. For this purpose, a benefit increase resulting from a plan amendment is deemed to be in effect on the later of the amendment’s adoption date or its effective date. Historically, PBGC has interpreted the statutory limitations to apply to the participant’s total nonforfeitable accrued benefit under a plan, including that portion of the benefit funded by traditional after-tax mandatory employee contributions. In the case of rollover amounts, however, PBGC will VerDate Sep<11>2014 14:24 Nov 24, 2014 Jkt 235001 exempt from these limitations the accrued benefit derived from mandatory employee contributions determined under the rules of Code section 411(c)(2)(B). The exemption will not apply to any benefit resulting from rollover amounts that exceeds the accrued benefit derived from mandatory employee contributions (i.e., the accrued benefit attributable to employer contributions). Rollovers can help preserve participants’ retirement savings until retirement. They provide a valuable means for participants to withdraw their benefits from one retirement plan and contribute them to another. PBGC believes that rollovers to defined benefit plans may provide lifetime-annuity protection at a competitive cost. Consistent with the Administration’s initiative on retirement security, PBGC wants to eliminate impediments to this form of annuitization of distributions from defined contribution plans by providing assurances to participants that their benefits attributable to rollover amounts to a defined benefit plan will largely be protected from the limitations that might otherwise apply if the plan terminates and is trusteed by PBGC. There are a number of reasons why PBGC views benefits resulting from the portion of rollover amounts treated as mandatory employee contributions differently from other benefits under a plan. Unlike other mandatory employee contributions, rollover benefits require an affirmative election by the participant to roll over a pension distribution to obtain an additional annuity from a defined benefit plan. If the benefit resulting from rollover amounts caused a participant’s total benefit under the plan to exceed PBGC’s maximum guaranteeable benefit, participants might be reluctant to roll over benefits from defined contribution plans to defined benefit plans. Applying the five-year phase-in limitation to benefits resulting from rollover amounts similarly might make rollovers unattractive. The limitations on PBGC’s guarantee were designed to protect the pension insurance system from risk of loss. But rollovers do not present the same risk of loss to the insurance program as other benefits. A benefit derived from rollover amounts treated as mandatory employee contributions is considered under Rev. Rul. 2012–4 to be actuarially equivalent to the rollover amounts received by the defined benefit plan. Therefore, although a plan accepting a rollover becomes liable to pay additional benefits, it simultaneously receives additional funds of equivalent value. PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 That is not true for most new benefit accruals. Accordingly, it is a reasonable statutory interpretation to exempt from the maximum guaranteeable benefit and phase-in limitations a benefit resulting from rollover amounts that does not exceed the accrued benefit treated as derived from mandatory employee contributions. In accordance with PBGC’s statutory interpretation, the final rule amends § 4022.22 to exempt the rollover benefit amount derived from mandatory employee contributions from the maximum guaranteeable benefit limitation. Thus, PBGC will exclude that amount from its determination of the participant’s maximum guaranteeable benefit. However, any rollover benefit in excess of the portion of such benefit derived from mandatory employee contributions (i.e., any portion of the rollover benefit derived from employer contributions) will be combined with the annuity otherwise payable under the plan in determining the participant’s maximum guaranteeable benefit. Similarly, the final rule amends § 4022.24 to exempt a participant’s rollover benefit derived from mandatory employee contributions from the fiveyear phase-in limitation. The five-year phase-in limitation will, however, apply to the portion of any rollover benefit derived from employer contributions, with that benefit portion deemed to be in effect on the date the rollover amounts were received by the plan. PBGC’s regulations provide for a third guarantee limitation, the ‘‘accrued-atnormal’’ limitation, which restricts PBGC’s guarantee of temporary supplements. Under § 4022.21, PBGC’s guarantee cannot exceed the accrued benefit payable as a straight life annuity at normal retirement age. PBGC will include the annuity attributable to rollover amounts in the determination of the accrued-at-normal limitation, which will increase the limitation against which the participant’s entire benefit is measured, and will apply the accrued-at-normal limitation to the entire benefit, including rollover amounts. This will generally have the effect of increasing the participant’s guaranteeable benefit. Form of Payment Before being amended by this final rule, PBGC’s regulation provided for the return of mandatory employee contributions in a single installment (or a series of installments) if a participant, or a beneficiary of a pre-retirement death benefit, so elected in accordance with the plan’s provisions. If a participant (or a surviving spouse) E:\FR\FM\25NOR1.SGM 25NOR1 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations wreier-aviles on DSK4TPTVN1PROD with RULES elected a return of mandatory employee contributions prior to the annuity starting date in the form of a lump sum, instead of as an annuity, the lump sum benefit would have been determined under § 4044.12(c)(2) as the amount of the participant’s accumulated mandatory contributions.7 A withdrawal of the participant’s accumulated mandatory employee contribution would have resulted in an accrued benefit under the plan derived solely from employer contributions. Under the final regulation, PBGC generally will not pay participants a lump sum return of mandatory employee contributions attributable to rollover amounts. PBGC will disregard a plan’s provisions for the return of employee contributions in a lump sum and will make rollover amounts payable only in the form of an annuity. Because the participant had the chance to take the distribution from a defined contribution plan as a lump sum and instead chose to roll it into a defined benefit plan to obtain additional annuity benefits, it would seem anomalous to later allow the participant to convert the additional annuity back into a lump sum. Moreover, paying the additional benefit as an annuity is consistent with PBGC’s policy of promoting retirement security through preserving lifetime retirement income. Under the final regulation, the annuity resulting from rollover amounts will be payable at the same time, and in the same form, as the remainder of the participant’s benefit under the plan to avoid administrative burden to PBGC.8 In the case of a plan that provides for a pre-retirement death benefit that returns the employee’s mandatory contributions in a single installment, if a participant dies after the plan terminates, PBGC will not allow the participant’s spouse to elect to withdraw the mandatory contributions attributable to rollover amounts in a single installment. Instead, PBGC will include such contributions in the value of the plan’s qualified preretirement survivor annuity (QPSA) to the spouse.9 7 PBGC determines the amount of the lump sum benefit based on the participant’s accumulated contributions—i.e., the employee’s mandatory contributions credited with interest for the period through the plan’s termination date (but not less than the minimum lump sum required under section 411(c) of the Code upon withdrawal of mandatory employee contributions). Interest on that sum is thereafter based on PBGC’s late-payment interest rate until the participant’s distribution date. 8 PBGC will disregard any plan provision that allows an additional annuity resulting from rollover amounts to have an annuity starting date that differs from the annuity starting date for the remainder of the participant’s benefit under the plan. 9 If no QPSA is payable, the mandatory contributions would be payable to a named VerDate Sep<11>2014 14:24 Nov 24, 2014 Jkt 235001 PBGC will determine whether a payment was de minimis (currently $5,000 or less under § 4022.7(b)(1)(i)) and, if so, will base the amount of the payment on the lump sum value of the participant’s total benefit payable by PBGC (the benefit resulting from rollover amounts combined with the benefit excluding rollover amounts). Allocation of Assets The final rule also amends PBGC’s asset allocation regulation to set forth rules for PBGC treatment of rollover benefits when a defined benefit plan terminates with insufficient assets to pay all benefits. New §§ 4044.12(b)(4) and (c)(4) describe the calculation of a participant’s total annuity benefit resulting from rollover amounts. For participants and beneficiaries not yet in pay status as of the termination date, the rollover amounts will be credited with interest payable under plan provisions to the plan’s termination date, and converted to an annuity benefit payable at the normal retirement age using the plan’s interest rates and conversion factors in effect as of the plan’s termination date for the conversion of such rollover amounts. Under the final regulation, the portion of a participant’s accrued benefit resulting from rollover amounts derived from mandatory employee contributions will be determined using the rules of section 411(c) of the Code. Specifically, the participant’s accumulated mandatory employee contributions—the participant’s rollover amounts credited with interest at 120% of the Federal mid-term rate from the date of the rollover to the plan’s termination date— will be converted to an actuarially equivalent straight life annuity under the plan payable at the normal retirement age using the applicable interest rate and mortality table under section 417(e) of the Code as of the plan’s termination date. Consistent with Rev. Rul. 2012–4, which defines this annuity amount as the actuarial equivalent of an employee’s rollover amounts to a defined benefit plan, only beneficiary in a life annuity form that would commence at the same time as a QPSA could commence under PBGC’s regulations. In the case of a cash refund annuity (i.e., a post-retirement lump sum death benefit of the value of the participant’s mandatory contributions in excess of the pension payments received by the participant at the time of death), PBGC will disregard this plan provision. Instead, PBGC will include the value of the mandatory contributions in the qualified joint and survivor annuity (QJSA) to the spouse or, if no QJSA is payable, would pay such amounts to a named beneficiary in a life annuity form that would commence at the same time as a QJSA could commence under PBGC’s regulations. PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 70093 an annuity benefit determined on this basis will be assigned to PC2. Rev. Rul. 2012–4 permits a qualified defined benefit plan to offer a subsidy with respect to a rollover by using a more generous annuity conversion factor than under the minimum rules for an actuarially equivalent annuity under section 411(c) of the Code, provided the additional qualification requirements applicable to a benefit derived from employer contributions are met. If, under the plan’s provisions, the benefit resulting from rollover amounts exceeds the annuity derived from mandatory employee contributions determined under the rules of section 411(c)(2) of the Code—for example, because the plan uses more generous conversion factors than those under section 417(e) of the Code—the final regulation treats the portion of the benefit in excess of the annuity derived from mandatory employee contributions under the rules of section 411(c)(2) as a benefit derived from employer contributions for purposes of assigning the benefits to the priority categories under part 4044. The annuity benefit derived from employer contributions will be a guaranteeable benefit in PC3, PC4, or PC5, as applicable, because it is a nonforfeitable benefit (i.e., a benefit for which the participant has satisfied all plan conditions for entitlement as of the plan’s termination date). Under section 4022(a) of ERISA, PBGC is required to guarantee all nonforfeitable benefits provided by a plan, subject to the limitations contained in section 4022(b). Applicability The amendments made by this final rule will apply to terminations initiated on or after December 26, 2014. Compliance With Rulemaking Requirements Executive Order 12866 ‘‘Regulatory Planning and Review’’ and Executive Order 13563 ‘‘Improving Regulation and Regulatory Review’’ This final rule is not a ‘‘significant regulatory action’’ under Executive Order 12866. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, E:\FR\FM\25NOR1.SGM 25NOR1 wreier-aviles on DSK4TPTVN1PROD with RULES 70094 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations and of promoting flexibility. Executive Orders 12866 and 13563 require a comprehensive regulatory impact analysis be performed for any economically significant regulatory action, defined as an action that would result in an annual effect of $100 million or more on the national economy or which would have other substantial impacts. In accordance with OMB Circular A–4, PBGC has examined the economic and policy implications of this final rule and has concluded that the action’s benefits justify its costs. Under Section 3(f)(1) of Executive Order 12866, a regulatory action is economically significant if ‘‘it is likely to result in a rule that may . . . [h]ave an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.’’ PBGC has determined that this final rule does not cross the $100 million threshold for economic significance and is not otherwise economically significant. PBGC estimates that the annual economic impact of this final rule will be about $11,000,000. This is the amount PBGC estimates that participants who roll over benefits from defined contribution plans to defined benefit plans that subsequently terminate and are trusteed by PBGC in aggregate would gain (and PBGC would lose), as a result of the regulatory change to exclude from the maximum guaranteeable benefit and phase-in limitations any benefit resulting from rollover amounts that does not exceed the accrued benefit derived from mandatory employee contributions. Since IRS has only recently provided guidance to defined benefit plans on calculating rollover amounts, PBGC has no historic data to draw upon in developing this estimate. Accordingly, PBGC made conservative assumptions based on its judgment about such factors as how many defined benefit plans would allow rollovers from defined contribution plans and how many participants in such plans would roll over benefits from defined contribution plans. Although it is difficult to predict with any certainty the annual economic impact of the regulatory action, given that the estimate is so far below $100 million, PBGC has determined that the annual economic impact of the final rule will be less than $100 million. Regulatory Flexibility Act The Regulatory Flexibility Act imposes certain requirements with VerDate Sep<11>2014 14:24 Nov 24, 2014 Jkt 235001 respect to rules that are subject to the notice and comment requirements of section 553(b) of the Administrative Procedure Act and that are likely to have a significant economic impact on a substantial number of small entities. Unless an agency determines that a proposed or final rule is not likely to have a significant economic impact on a substantial number of small entities, section 603 of the Regulatory Flexibility Act requires that the agency present an initial regulatory flexibility analysis at the time of the publication of the rule describing the impact of the rule on small entities and seeking public comment on such impact. Small entities include small businesses, organizations and governmental jurisdictions. For purposes of the Regulatory Flexibility Act requirements with respect to this final rule, PBGC considers a small entity to be a plan with fewer than 100 participants. This criterion is consistent with certain requirements in Title I of ERISA and the Internal Revenue Code, as well as the definition of a small entity that the Department of Labor has used in similar circumstances for purposes of the Regulatory Flexibility Act. Further, while some large employers that terminate plans may have small plans that terminate along with larger ones, in general most small plans are maintained by small employers. Thus, PBGC believes that assessing the impact of the final rule on small plans is an appropriate substitute for evaluating the effect on small entities. The definition of small entity considered appropriate for this purpose differs, however, from a definition of small business based on size standards promulgated by the Small Business Administration (13 CFR 121.201) pursuant to the Small Business Act. Therefore, in the proposed rule, PBGC requested comments on the appropriateness of the size standard used in evaluating the impact on small entities of the amendments to the benefit payments regulation. No comments were received on this point. On the basis of this definition of small entity, 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. Virtually all, if not all, of the effect of this final rule will be on PBGC or persons who receive benefits from PBGC. Accordingly, as provided in section 605 of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), sections 603 and 604 do not apply. PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 List of Subjects 29 CFR Part 4001 Pensions. 29 CFR Part 4022 Pension insurance, Pensions. 29 CFR Part 4044 Pension insurance, Pensions. For the reasons given above, PBGC is amending 29 CFR parts 4001, 4022, and 4044 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 definition for ‘‘rollover amounts’’ in alphabetical order to read as follows: ■ § 4001.2 Definitions. * * * * * Rollover amounts means the dollar amount of all or any part of a distribution that is rolled over from a defined contribution plan into a defined benefit plan in accordance with section 401(a)(31) or 402(c) or similar provisions under the Internal Revenue Code. Rollover amounts include salary deferral contributions made by the participant, any additional employer contributions provided for under the defined contribution plan, and earnings on both. * * * * * 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, 1322(b), 1341(c)(3)(D), and 1344. § 4022.2 [Amended] 4. In § 4022.2, the definition of ‘‘pension benefit’’ is amended by adding at the end ‘‘An annuity benefit resulting from a rollover amount is a pension benefit.’’ ■ 5. Amend § 4022.7 as follows: ■ a. In paragraph (b)(2)(i), add the phrase ‘‘except as provided in paragraph (b)(2)(iii) of this section,’’ after the words ‘‘Notwithstanding any other provision of this part,’’; ■ b. Add paragraph (b)(2)(iii); and ■ c. Revise paragraph (c)(2). The addition and revision read as follows: ■ § 4022.7 Benefits payable in a single installment. * E:\FR\FM\25NOR1.SGM * * 25NOR1 * * Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations (b) * * * (2) * * * (iii) Rollover amounts. The rule in paragraph (b)(2) of this section (dealing with return of employee contributions) does not apply to a participant’s accumulated mandatory employee contributions resulting from rollover amounts (as determined under § 4044.12(c)(4)(i) of this chapter) or the benefit derived from such mandatory employee contributions. * * * * * (c) * * * (2) Exception. Except in the case of accumulated mandatory employee contributions resulting from rollover amounts (as determined under § 4044.12(c)(4)(i) of this chapter), upon the death of a participant the PBGC may pay in a single installment (or a series of installments) that portion of the participant’s accumulated mandatory employee contributions that is payable under the plan in a single installment (or a series of installments) upon the participant’s death. * * * * * ■ 6. In § 4022.8, add paragraph (f) to read as follows: § 4022.8 Form of payment. * * * * * (f) Rollover amounts. The annuity benefit resulting from rollover amounts (as determined under § 4044.12(c)(4) of this chapter) is combined with any other benefit under the plan and paid in the same form and at the same time as the other benefit. ■ 7. In § 4022.22, add paragraph (d) to read as follows: § 4022.22 Maximum guaranteeable benefit. wreier-aviles on DSK4TPTVN1PROD with RULES * * * * * (d) Rollover amounts. Any portion of a benefit derived from mandatory employee contributions resulting from rollover amounts (as determined under § 4044.12(c)(4)(i) of this chapter) is disregarded in applying the provisions of §§ 4022.22 and 4022.23. However, any portion of a benefit derived from employer contributions resulting from rollover amounts (as determined under § 4044.12(c)(4)(ii) of this chapter) is combined with any other benefit under the plan for purposes of determining the maximum guaranteeable benefit under §§ 4022.22 and 4022.23. For example, assume that a participant has an $80,000 total annual plan benefit at age 65, of which $15,000 is derived from mandatory employee contributions resulting from rollover amounts and $5,000 is derived from employer contributions resulting from rollover amounts. The $15,000 benefit derived VerDate Sep<11>2014 14:24 Nov 24, 2014 Jkt 235001 from employee contributions resulting from rollover amounts would be excluded in the determination of the participant’s maximum guaranteeable amount. The participant’s remaining $65,000 benefit (including the $5,000 benefit derived from employer contributions resulting from rollover amounts) would be subject to the maximum guaranteeable benefit limitation. Assuming the plan terminated in 2014, the participant’s maximum guaranteeable benefit of approximately $59,000 for a straight life annuity at age 65 would effectively be increased by the $15,000 benefit derived from employee contributions resulting from rollover amounts, resulting in total guaranteeable benefits of approximately $74,000. (The maximum guaranteeable benefit limitation would apply to the participant’s benefit derived from employer contributions; as a result, $6,000 of the participant’s benefit derived from employer contributions would not be guaranteeable by PBGC.) ■ 8. In § 4022.24, add paragraph (g) to read as follows: § 4022.24 Benefit increases. * * * * * (g) Rollover amounts. Any portion of a benefit derived from mandatory employee contributions resulting from rollover amounts (as determined under § 4044.12 (c)(4)(i) of this chapter) is disregarded in applying the provisions of §§ 4022.24 through 4022.26. However, any portion of a benefit derived from employer contributions resulting from rollover amounts (as determined under § 4044.12(c)(4)(ii) of this chapter) is combined with any other benefit under the plan in applying the provisions of §§ 4022.24 through 4022.26. In such case, the benefit increase is deemed to be in effect on the date the rollover amounts are received by the plan. PART 4044—ALLOCATION OF ASSETS IN SINGLE-EMPLOYER PLANS 9. The authority citation for part 4044 continues to read as follows: ■ Authority: 29 U.S.C. 1301(a), 1302(b)(3), 1341, 1344, and 1362. 10. In 4044.12, paragraphs (b)(4) and (c)(4) are added to read as follows: ■ § 4044.12 Priority category 2 benefits. * * * * * (b) * * * (4) Rollover amounts. In the case of a benefit resulting from rollover amounts, notwithstanding the provisions of paragraph (b)(2) of this section, the interest rates and conversion factors in PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 70095 paragraph (c)(4) of this section are used to determine the portion of the accrued benefit derived from the employee’s contributions and, if any, the portion of the accrued benefit derived from employer contributions. (c) * * * (4) Special rules for benefit resulting from rollover amounts. (i) Mandatory employee contributions. Notwithstanding paragraphs (c)(1) through (3) of this section, in the case of a benefit resulting from rollover amounts, the accrued benefit derived from mandatory employee contributions is determined using the interest rates and conversion factors under section 411(c)(2)(B) and (C) of the Code for purposes of computing an employee’s accrued benefit derived from the employee’s contributions. The annuity benefit and the pre-retirement death benefit, as determined on this basis, is the benefit resulting from rollover amounts in priority category 2. (ii) Employer contributions. Any portion of a participant’s accrued benefit resulting from rollover amounts that is in excess of the accrued benefit derived from mandatory employee contributions determined in accordance with paragraph (c)(4)(i) of this section (i.e., the accrued benefit derived from employer contributions) is a guaranteeable benefit in priority category 3, priority category 4, or priority category 5, as applicable under this part. Issued in Washington, DC, this 18 day of November, 2014. Alice C. Maroni, Acting Director, Pension Benefit Guaranty Corporation . [FR Doc. 2014–27826 Filed 11–24–14; 8:45 am] BILLING CODE 7709–02–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R03–OAR–2014–0690; FRL–9919–48– Region–3] Approval and Promulgation of Air Quality Implementation Plans; Maryland; Prevention of Significant Deterioration Environmental Protection Agency. ACTION: Direct final rule. AGENCY: The Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the Maryland State Implementation Plan (SIP). The revisions incorporate by SUMMARY: E:\FR\FM\25NOR1.SGM 25NOR1

Agencies

[Federal Register Volume 79, Number 227 (Tuesday, November 25, 2014)]
[Rules and Regulations]
[Pages 70090-70095]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-27826]


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PENSION BENEFIT GUARANTY CORPORATION

29 CFR Parts 4001, 4022, and 4044

RIN 1212-AB23


Title IV Treatment of Rollovers From Defined Contribution Plans 
to Defined Benefit Plans

AGENCY: Pension Benefit Guaranty Corporation.

ACTION: Final rule.

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SUMMARY: In April 2014, PBGC proposed to amend its regulations to 
clarify the treatment of benefits resulting from a rollover 
distribution from a defined contribution plan to a defined benefit 
plan, if the defined benefit plan was terminated and trusteed by PBGC. 
Under the proposal, a benefit resulting from rollover amounts generally 
would not be subject to PBGC's maximum guaranteeable benefit or phase-
in limitations and would be in the second highest priority category of 
benefits in the allocation of assets. PBGC is now finalizing that 
proposal. Except for making minor clarifications suggested by 
commenters, the final regulation is the same as the proposed 
regulation. This rulemaking is part of PBGC's efforts to enhance 
retirement security by promoting lifetime income options.

DATES: Effective December 26, 2014. See Applicability in SUPPLEMENTARY 
INFORMATION.

FOR FURTHER INFORMATION CONTACT: Catherine B. Klion 
(klion.catherine@pbgc.gov), Assistant General Counsel, Office of the 
General Counsel, Pension Benefit Guaranty Corporation, 1200 K Street 
NW., Washington, DC 20005-4026; 202-326-4024. (TTY and TDD 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:

Executive Summary

Purpose of the Regulatory Action

    This regulatory action is needed to provide guidance on treatment 
of benefits resulting from a rollover distribution from a defined 
contribution plan to a defined benefit plan, where the defined benefit 
plan is terminated and trusteed by the Pension Benefit Guaranty 
Corporation (PBGC).
    Legal authority for this action comes from section 4002(b)(3) of 
the Employee Retirement Income Security Act of 1974 (ERISA), which 
authorizes PBGC to issue regulations to carry out the purposes of Title 
IV of ERISA, section 4022 of ERISA (Single-Employer Plan Benefits 
Guaranteed), and section 4044 of ERISA (Allocation of Assets).

Major Provisions of the Regulatory Action

    Under the final regulation, a benefit resulting from rollover 
amounts generally will be in the second highest priority category among 
various classes of benefits in the allocation of assets and generally 
will not be subject to PBGC's maximum guaranteeable benefit or phase-in 
limitations.

Background

    PBGC administers the single-employer pension plan termination 
insurance program under Title IV of ERISA. The program covers private-
sector, single-employer defined benefit plans, for which premiums are 
paid to PBGC each year. Covered plans that are underfunded may 
terminate either in a distress termination under section 4041(c) of 
ERISA or in an involuntary termination (one initiated by PBGC) under 
section 4042 of ERISA. When such a plan terminates, PBGC typically is 
appointed statutory trustee of the plan, and becomes responsible for 
paying benefits in accordance with the provisions of Title IV. At 
times, plans trusteed by PBGC include contributions made by employees 
that fund part of the benefit under the plan.

Mandatory Contributions

    A plan may be funded in whole or in part by mandatory 
contributions. Under section 4044(b)(6) of ERISA, the term ``mandatory 
contributions'' means amounts contributed to the plan by a participant 
that are required as a condition of employment, as a condition of 
participation in such plan, or as a condition of obtaining benefits 
under the plan attributable to employer contributions.
    Typically, mandatory employee contributions are required under the 
plan as a percentage of the employee's compensation. They are withheld 
from the salary of the employee by the employer and deposited to the 
employee's credit in the defined benefit plan on an after-tax basis.\1\ 
Such mandatory employee contributions have generally been used to fund 
a portion of the participant's accrued benefit as determined under the 
plan's benefit formula and are required in order to receive the portion 
of the accrued benefit derived from employer contributions.
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    \1\ Generally, contributions by employees to defined benefit 
plans (whether mandatory or voluntary) are not deductible for 
federal income tax purposes.
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    Section 411(c)(2)(B) of the Code \2\ provides that, in the case of 
a defined benefit plan, the accrued benefit derived from mandatory 
employee contributions is equal to the employee's contributions 
accumulated to normal retirement age using specified rates under 
section 411(c)(2)(C), and converted to an actuarially equivalent 
annuity commencing at normal retirement age, using an interest rate 
under section 417(e)(3) of the Code as of the determination date. 
Section 411(c)(1) of the Code provides that an employee's accrued 
benefit derived from employer contributions as of any date is the 
excess, if any, of the accrued benefit for the employee as of that date 
over the accrued benefit derived from contributions made by the 
employee as of that date.
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    \2\ See also ERISA section 204(c)(2)(B). References to the Code 
in this preamble should be read to include the parallel provision 
under ERISA.
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PBGC Treatment of Mandatory Employee Contributions in Terminated Plans

    When a plan terminates in a distress termination or an involuntary 
termination, each participant's plan benefit is assigned to one or more 
of six ``priority categories'' that are described in paragraphs (1) 
through (6) of section 4044(a) of ERISA.\3\ Participants' accrued

[[Page 70091]]

benefits derived from mandatory employee contributions are assigned to 
PC2. Because benefits in PC2 have a higher claim on plan assets than 
nearly all other benefits under the plan, when an underfunded plan 
terminates, plan assets are usually (but not always) sufficient to pay 
accrued benefits derived from mandatory employee contributions.
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    \3\ Plan assets must be allocated to each priority category in 
succession, beginning with priority category one (PC1). The benefits 
assigned to each priority category under section 4044 of ERISA in 
general are as follows:
     PC1: The portion of a participant's accrued benefit 
derived from the participant's voluntary contributions.
     PC2: The portion of a participant's accrued benefit 
derived from the participant's mandatory contributions.
     PC3: The portion of a participant's benefit that was in 
pay status as of the beginning of the three-year period ending on 
the termination date (or bankruptcy filing date, if applicable), or 
that would have been in pay status at the beginning of such three-
year period if the participant had retired before the beginning of 
such three-year period, provided that the benefit was the lowest 
benefit payable under the plan provisions at any time during the 
period beginning five years before the termination date (or 
bankruptcy filing date, if applicable) and ending on the termination 
date.
     PC4: All other guaranteed benefits.
     PC5: All other nonforfeitable benefits.
     PC6: All other benefits.
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    Although PBGC generally pays benefits only in annuity form, PBGC's 
regulations allow a return of mandatory employee contributions in a 
single installment (or a series of installments), provided certain 
conditions are met (see Sec.  4022.7(b)(2)).

Rollover Benefits Under the Code and Treasury/IRS Guidance

    Section 401(a)(31) of the Code requires a qualified plan to permit 
a distributee of any eligible rollover distribution to elect a direct 
rollover of any part of the distribution to an eligible retirement 
plan. Section 402(c) of the Code permits an individual receiving an 
eligible rollover distribution from a qualified plan to elect to roll 
over any portion of that distribution within a specified time to an 
eligible retirement plan that accepts the rollover (including a defined 
benefit plan).
    On February 21, 2012, the Department of the Treasury (Treasury) and 
the Internal Revenue Service (IRS) issued Rev. Rul. 2012-4,\4\ which 
clarified certain qualification requirements under section 401(a) of 
the Code for use of rollover amounts to provide an additional benefit 
under a defined benefit plan. Under the facts of the example provided 
in Rev. Rul. 2012-4, a qualified defined benefit plan provides that it 
will accept a direct rollover of a distribution from a qualified 
defined contribution plan maintained by the same employer for an 
employee or former employee of the employer who separates from service 
after age 55 with at least 10 years of service and elects to commence 
an immediate annuity of the employee's benefit under the plan 
(including the additional benefit resulting from the direct rollover).
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    \4\ 2012-8 I.R.B. 386, http://www.irs.gov/irb/2012-08_IRB/ar08.html.
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    Rev. Rul. 2012-4 treats the amounts rolled over as mandatory 
employee contributions for purposes of section 411(c) of the Code. The 
revenue ruling further provides that, if the plan provided an annuity 
with respect to the rollover in excess of the amount determined under 
the rules of section 411(c) of the Code, such as by using a more 
favorable actuarial conversion basis than required by those rules, the 
portion of the benefit resulting from the rollover amounts that 
exceeded the benefit derived from mandatory employee contributions as 
determined under section 411(c)(2) of the Code would be subject to the 
requirements applicable to a benefit attributable to employer 
contributions. The revenue ruling states that in this case, the 
liability for the total benefit resulting from the rollover (including 
the portion of the accrued benefit considered to be derived from 
employer contributions because it exceeds the amount determined under 
section 411(c)(2)(B)) would likely exceed the amounts rolled over, 
which means that the employer will become responsible for additional 
funding costs.
    Rev. Rul. 2012-4 states (in footnote 1) that PBGC is developing 
guidance on the Title IV treatment of benefits under a defined benefit 
plan resulting from a rollover. This final rule is that guidance.\5\
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    \5\ The facts of the example in Rev. Rul. 2012-4 involve an 
employee who separates from service after age 55 with at least ten 
years of service and elects to commence an immediate annuity and 
rolls over a benefit from a defined contribution plan to a defined 
benefit plan maintained by the same employer. However, rollovers are 
permitted in broader circumstances. This final rule is not limited 
to the facts in the example.
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    PBGC is amending its regulations to provide guidance on Title IV 
treatment of rollovers, both in anticipation of increased use of 
rollovers, and as part of its efforts to promote retirement security. 
The availability of a rollover of a participant's retirement savings in 
a 401(k) or other defined contribution plan to a defined benefit plan 
expands the opportunities for participants to elect lifetime annuity 
options.

Proposed Rule

    On April 2, 2014 (at 79 FR 18483), PBGC published a proposed rule 
on Title IV treatment of rollovers. PBGC received comments from the 
American Federation of Labor and Congress of Industrial Organizations 
(AFL-CIO), the American Council of Life Insurers (ACLI), and AARP.\6\ 
The commenters all supported the proposed rule and PBGC's efforts to 
promote lifetime income options.
---------------------------------------------------------------------------

    \6\ The comments can be found at http://www.pbgc.gov/documents/Comments-to-PBGC-on-Title-IV-Rollover-Treatment.pdf.
---------------------------------------------------------------------------

    In response to the comments, the final regulation makes the 
following clarifications:
     The amendments in this final rule apply only to rollovers 
from defined contribution plans. See Sec.  4001.2 (definition of 
rollover amounts).
     Rollover amounts include both salary deferral 
contributions made by the participant, any additional employer 
contributions provided for under the defined contribution plan, and 
earnings on both. See Sec.  4001.2 (definition of rollover amounts).
     The annuity benefit resulting from a rollover amount is a 
pension benefit (and thus guaranteeable). See Sec.  4022.2 (definition 
of pension benefit).
    Except for these clarifications, the final regulation is the same 
as the proposed regulation.

Overview of Final Regulation

    PBGC is amending its regulations on Benefits Payable in Terminated 
Single-Employer Plans (29 CFR part 4022) and Allocation of Assets in 
Single-Employer Plans (29 CFR part 4044). The amendments establish or 
clarify the rules for treatment of rollovers from a defined 
contribution plan to a defined benefit plan, when the defined benefit 
plan later terminates in an underfunded status. Following are the most 
important changes:
     A benefit resulting from rollover amounts will be treated 
as an accrued benefit derived from mandatory employee contributions in 
PC2 (which has a higher claim on plan assets than nearly all other 
benefits under the plan), to the extent that the benefit is determined 
using the rules of Code section 411(c)(2)(B).
     Unlike other PC2 benefits, a PC2 benefit resulting from 
rollover amounts will generally not be payable in lump sum form.
     The portion of a benefit resulting from rollover amounts 
that exceeds the accrued benefit derived from mandatory employee 
contributions (i.e., the portion derived from employer contributions) 
will be a guaranteeable benefit in PC3, PC4, or PC5, as applicable.
     A participant's accrued benefit resulting from rollover 
amounts generally will not be subject to PBGC's maximum guaranteeable 
benefit limitation under section 4022(b) of ERISA and thus will not be 
taken into

[[Page 70092]]

account in applying that limitation. However, the maximum guaranteeable 
benefit limitation will apply to any benefit resulting from a rollover 
amount that exceeds the accrued benefit treated as derived from 
mandatory employee contributions (i.e., the accrued benefit 
attributable to employer contributions).
     A participant's accrued benefit resulting from rollover 
amounts generally will not be subject to the five-year phase-in 
limitation on the guarantee of benefit increases. However, the phase-in 
limitation will apply to any benefit resulting from a rollover amount 
that exceeds the accrued benefit treated as derived from mandatory 
employee contributions, with the phase-in period beginning as of the 
date the rollover contribution was received by the plan.

A detailed discussion of the final regulation follows.

Regulatory Changes

Guaranteed Benefits

    Under section 4022 of ERISA, PBGC guarantees the payment of all 
nonforfeitable benefits provided by a plan, subject to two principal 
statutory limitations--the maximum guaranteeable benefit limitation and 
the five-year phase-in limitation.
    The amount of the maximum monthly guarantee is set by law and is 
updated each calendar year. The maximum guaranteeable benefit 
applicable to a plan is fixed as of that plan's termination date. Under 
the Pension Protection Act of 2006, if a plan terminates during a plan 
sponsor's bankruptcy and the sponsor entered bankruptcy on or after 
September 16, 2006, the maximum guaranteeable benefit is fixed as of 
the date the sponsor entered bankruptcy.
    The five-year phase-in limitation generally applies to a benefit 
increase that has been in effect for less than five years. Generally, 
20 percent of a benefit increase is guaranteed after one year, 40 
percent after two years, etc., with full phase-in of the guarantee 
after five years. If the amount of the monthly benefit increase is 
below $100, the annual rate of phase-in is $20 rather than 20 percent. 
For this purpose, a benefit increase resulting from a plan amendment is 
deemed to be in effect on the later of the amendment's adoption date or 
its effective date.
    Historically, PBGC has interpreted the statutory limitations to 
apply to the participant's total nonforfeitable accrued benefit under a 
plan, including that portion of the benefit funded by traditional 
after-tax mandatory employee contributions. In the case of rollover 
amounts, however, PBGC will exempt from these limitations the accrued 
benefit derived from mandatory employee contributions determined under 
the rules of Code section 411(c)(2)(B). The exemption will not apply to 
any benefit resulting from rollover amounts that exceeds the accrued 
benefit derived from mandatory employee contributions (i.e., the 
accrued benefit attributable to employer contributions).
    Rollovers can help preserve participants' retirement savings until 
retirement. They provide a valuable means for participants to withdraw 
their benefits from one retirement plan and contribute them to another. 
PBGC believes that rollovers to defined benefit plans may provide 
lifetime-annuity protection at a competitive cost. Consistent with the 
Administration's initiative on retirement security, PBGC wants to 
eliminate impediments to this form of annuitization of distributions 
from defined contribution plans by providing assurances to participants 
that their benefits attributable to rollover amounts to a defined 
benefit plan will largely be protected from the limitations that might 
otherwise apply if the plan terminates and is trusteed by PBGC.
    There are a number of reasons why PBGC views benefits resulting 
from the portion of rollover amounts treated as mandatory employee 
contributions differently from other benefits under a plan. Unlike 
other mandatory employee contributions, rollover benefits require an 
affirmative election by the participant to roll over a pension 
distribution to obtain an additional annuity from a defined benefit 
plan. If the benefit resulting from rollover amounts caused a 
participant's total benefit under the plan to exceed PBGC's maximum 
guaranteeable benefit, participants might be reluctant to roll over 
benefits from defined contribution plans to defined benefit plans. 
Applying the five-year phase-in limitation to benefits resulting from 
rollover amounts similarly might make rollovers unattractive.
    The limitations on PBGC's guarantee were designed to protect the 
pension insurance system from risk of loss. But rollovers do not 
present the same risk of loss to the insurance program as other 
benefits. A benefit derived from rollover amounts treated as mandatory 
employee contributions is considered under Rev. Rul. 2012-4 to be 
actuarially equivalent to the rollover amounts received by the defined 
benefit plan. Therefore, although a plan accepting a rollover becomes 
liable to pay additional benefits, it simultaneously receives 
additional funds of equivalent value. That is not true for most new 
benefit accruals. Accordingly, it is a reasonable statutory 
interpretation to exempt from the maximum guaranteeable benefit and 
phase-in limitations a benefit resulting from rollover amounts that 
does not exceed the accrued benefit treated as derived from mandatory 
employee contributions.
    In accordance with PBGC's statutory interpretation, the final rule 
amends Sec.  4022.22 to exempt the rollover benefit amount derived from 
mandatory employee contributions from the maximum guaranteeable benefit 
limitation. Thus, PBGC will exclude that amount from its determination 
of the participant's maximum guaranteeable benefit. However, any 
rollover benefit in excess of the portion of such benefit derived from 
mandatory employee contributions (i.e., any portion of the rollover 
benefit derived from employer contributions) will be combined with the 
annuity otherwise payable under the plan in determining the 
participant's maximum guaranteeable benefit.
    Similarly, the final rule amends Sec.  4022.24 to exempt a 
participant's rollover benefit derived from mandatory employee 
contributions from the five-year phase-in limitation. The five-year 
phase-in limitation will, however, apply to the portion of any rollover 
benefit derived from employer contributions, with that benefit portion 
deemed to be in effect on the date the rollover amounts were received 
by the plan.
    PBGC's regulations provide for a third guarantee limitation, the 
``accrued-at-normal'' limitation, which restricts PBGC's guarantee of 
temporary supplements. Under Sec.  4022.21, PBGC's guarantee cannot 
exceed the accrued benefit payable as a straight life annuity at normal 
retirement age. PBGC will include the annuity attributable to rollover 
amounts in the determination of the accrued-at-normal limitation, which 
will increase the limitation against which the participant's entire 
benefit is measured, and will apply the accrued-at-normal limitation to 
the entire benefit, including rollover amounts. This will generally 
have the effect of increasing the participant's guaranteeable benefit.

Form of Payment

    Before being amended by this final rule, PBGC's regulation provided 
for the return of mandatory employee contributions in a single 
installment (or a series of installments) if a participant, or a 
beneficiary of a pre-retirement death benefit, so elected in accordance 
with the plan's provisions. If a participant (or a surviving spouse)

[[Page 70093]]

elected a return of mandatory employee contributions prior to the 
annuity starting date in the form of a lump sum, instead of as an 
annuity, the lump sum benefit would have been determined under Sec.  
4044.12(c)(2) as the amount of the participant's accumulated mandatory 
contributions.\7\ A withdrawal of the participant's accumulated 
mandatory employee contribution would have resulted in an accrued 
benefit under the plan derived solely from employer contributions.
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    \7\ PBGC determines the amount of the lump sum benefit based on 
the participant's accumulated contributions--i.e., the employee's 
mandatory contributions credited with interest for the period 
through the plan's termination date (but not less than the minimum 
lump sum required under section 411(c) of the Code upon withdrawal 
of mandatory employee contributions). Interest on that sum is 
thereafter based on PBGC's late-payment interest rate until the 
participant's distribution date.
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    Under the final regulation, PBGC generally will not pay 
participants a lump sum return of mandatory employee contributions 
attributable to rollover amounts. PBGC will disregard a plan's 
provisions for the return of employee contributions in a lump sum and 
will make rollover amounts payable only in the form of an annuity. 
Because the participant had the chance to take the distribution from a 
defined contribution plan as a lump sum and instead chose to roll it 
into a defined benefit plan to obtain additional annuity benefits, it 
would seem anomalous to later allow the participant to convert the 
additional annuity back into a lump sum. Moreover, paying the 
additional benefit as an annuity is consistent with PBGC's policy of 
promoting retirement security through preserving lifetime retirement 
income.
    Under the final regulation, the annuity resulting from rollover 
amounts will be payable at the same time, and in the same form, as the 
remainder of the participant's benefit under the plan to avoid 
administrative burden to PBGC.\8\ In the case of a plan that provides 
for a pre-retirement death benefit that returns the employee's 
mandatory contributions in a single installment, if a participant dies 
after the plan terminates, PBGC will not allow the participant's spouse 
to elect to withdraw the mandatory contributions attributable to 
rollover amounts in a single installment. Instead, PBGC will include 
such contributions in the value of the plan's qualified preretirement 
survivor annuity (QPSA) to the spouse.\9\ PBGC will determine whether a 
payment was de minimis (currently $5,000 or less under Sec.  
4022.7(b)(1)(i)) and, if so, will base the amount of the payment on the 
lump sum value of the participant's total benefit payable by PBGC (the 
benefit resulting from rollover amounts combined with the benefit 
excluding rollover amounts).
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    \8\ PBGC will disregard any plan provision that allows an 
additional annuity resulting from rollover amounts to have an 
annuity starting date that differs from the annuity starting date 
for the remainder of the participant's benefit under the plan.
    \9\ If no QPSA is payable, the mandatory contributions would be 
payable to a named beneficiary in a life annuity form that would 
commence at the same time as a QPSA could commence under PBGC's 
regulations. In the case of a cash refund annuity (i.e., a post-
retirement lump sum death benefit of the value of the participant's 
mandatory contributions in excess of the pension payments received 
by the participant at the time of death), PBGC will disregard this 
plan provision. Instead, PBGC will include the value of the 
mandatory contributions in the qualified joint and survivor annuity 
(QJSA) to the spouse or, if no QJSA is payable, would pay such 
amounts to a named beneficiary in a life annuity form that would 
commence at the same time as a QJSA could commence under PBGC's 
regulations.
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Allocation of Assets

    The final rule also amends PBGC's asset allocation regulation to 
set forth rules for PBGC treatment of rollover benefits when a defined 
benefit plan terminates with insufficient assets to pay all benefits.
    New Sec. Sec.  4044.12(b)(4) and (c)(4) describe the calculation of 
a participant's total annuity benefit resulting from rollover amounts. 
For participants and beneficiaries not yet in pay status as of the 
termination date, the rollover amounts will be credited with interest 
payable under plan provisions to the plan's termination date, and 
converted to an annuity benefit payable at the normal retirement age 
using the plan's interest rates and conversion factors in effect as of 
the plan's termination date for the conversion of such rollover 
amounts.
    Under the final regulation, the portion of a participant's accrued 
benefit resulting from rollover amounts derived from mandatory employee 
contributions will be determined using the rules of section 411(c) of 
the Code. Specifically, the participant's accumulated mandatory 
employee contributions--the participant's rollover amounts credited 
with interest at 120% of the Federal mid-term rate from the date of the 
rollover to the plan's termination date--will be converted to an 
actuarially equivalent straight life annuity under the plan payable at 
the normal retirement age using the applicable interest rate and 
mortality table under section 417(e) of the Code as of the plan's 
termination date. Consistent with Rev. Rul. 2012-4, which defines this 
annuity amount as the actuarial equivalent of an employee's rollover 
amounts to a defined benefit plan, only an annuity benefit determined 
on this basis will be assigned to PC2.
    Rev. Rul. 2012-4 permits a qualified defined benefit plan to offer 
a subsidy with respect to a rollover by using a more generous annuity 
conversion factor than under the minimum rules for an actuarially 
equivalent annuity under section 411(c) of the Code, provided the 
additional qualification requirements applicable to a benefit derived 
from employer contributions are met. If, under the plan's provisions, 
the benefit resulting from rollover amounts exceeds the annuity derived 
from mandatory employee contributions determined under the rules of 
section 411(c)(2) of the Code--for example, because the plan uses more 
generous conversion factors than those under section 417(e) of the 
Code--the final regulation treats the portion of the benefit in excess 
of the annuity derived from mandatory employee contributions under the 
rules of section 411(c)(2) as a benefit derived from employer 
contributions for purposes of assigning the benefits to the priority 
categories under part 4044. The annuity benefit derived from employer 
contributions will be a guaranteeable benefit in PC3, PC4, or PC5, as 
applicable, because it is a nonforfeitable benefit (i.e., a benefit for 
which the participant has satisfied all plan conditions for entitlement 
as of the plan's termination date). Under section 4022(a) of ERISA, 
PBGC is required to guarantee all nonforfeitable benefits provided by a 
plan, subject to the limitations contained in section 4022(b).

Applicability

    The amendments made by this final rule will apply to terminations 
initiated on or after December 26, 2014.

Compliance With Rulemaking Requirements

Executive Order 12866 ``Regulatory Planning and Review'' and Executive 
Order 13563 ``Improving Regulation and Regulatory Review''

    This final rule is not a ``significant regulatory action'' under 
Executive Order 12866.
    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules,

[[Page 70094]]

and of promoting flexibility. Executive Orders 12866 and 13563 require 
a comprehensive regulatory impact analysis be performed for any 
economically significant regulatory action, defined as an action that 
would result in an annual effect of $100 million or more on the 
national economy or which would have other substantial impacts. In 
accordance with OMB Circular A-4, PBGC has examined the economic and 
policy implications of this final rule and has concluded that the 
action's benefits justify its costs.
    Under Section 3(f)(1) of Executive Order 12866, a regulatory action 
is economically significant if ``it is likely to result in a rule that 
may . . . [h]ave an annual effect on the economy of $100 million or 
more or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities.'' PBGC has determined that this final rule does not cross 
the $100 million threshold for economic significance and is not 
otherwise economically significant.
    PBGC estimates that the annual economic impact of this final rule 
will be about $11,000,000. This is the amount PBGC estimates that 
participants who roll over benefits from defined contribution plans to 
defined benefit plans that subsequently terminate and are trusteed by 
PBGC in aggregate would gain (and PBGC would lose), as a result of the 
regulatory change to exclude from the maximum guaranteeable benefit and 
phase-in limitations any benefit resulting from rollover amounts that 
does not exceed the accrued benefit derived from mandatory employee 
contributions.
    Since IRS has only recently provided guidance to defined benefit 
plans on calculating rollover amounts, PBGC has no historic data to 
draw upon in developing this estimate. Accordingly, PBGC made 
conservative assumptions based on its judgment about such factors as 
how many defined benefit plans would allow rollovers from defined 
contribution plans and how many participants in such plans would roll 
over benefits from defined contribution plans.
    Although it is difficult to predict with any certainty the annual 
economic impact of the regulatory action, given that the estimate is so 
far below $100 million, PBGC has determined that the annual economic 
impact of the final rule will be less than $100 million.

Regulatory Flexibility Act

    The Regulatory Flexibility Act imposes certain requirements with 
respect to rules that are subject to the notice and comment 
requirements of section 553(b) of the Administrative Procedure Act and 
that are likely to have a significant economic impact on a substantial 
number of small entities. Unless an agency determines that a proposed 
or final rule is not likely to have a significant economic impact on a 
substantial number of small entities, section 603 of the Regulatory 
Flexibility Act requires that the agency present an initial regulatory 
flexibility analysis at the time of the publication of the rule 
describing the impact of the rule on small entities and seeking public 
comment on such impact. Small entities include small businesses, 
organizations and governmental jurisdictions.
    For purposes of the Regulatory Flexibility Act requirements with 
respect to this final rule, PBGC considers a small entity to be a plan 
with fewer than 100 participants. This criterion is consistent with 
certain requirements in Title I of ERISA and the Internal Revenue Code, 
as well as the definition of a small entity that the Department of 
Labor has used in similar circumstances for purposes of the Regulatory 
Flexibility Act.
    Further, while some large employers that terminate plans may have 
small plans that terminate along with larger ones, in general most 
small plans are maintained by small employers. Thus, PBGC believes that 
assessing the impact of the final rule on small plans is an appropriate 
substitute for evaluating the effect on small entities. The definition 
of small entity considered appropriate for this purpose differs, 
however, from a definition of small business based on size standards 
promulgated by the Small Business Administration (13 CFR 121.201) 
pursuant to the Small Business Act. Therefore, in the proposed rule, 
PBGC requested comments on the appropriateness of the size standard 
used in evaluating the impact on small entities of the amendments to 
the benefit payments regulation. No comments were received on this 
point.
    On the basis of this definition of small entity, 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. 
Virtually all, if not all, of the effect of this final rule will be on 
PBGC or persons who receive benefits from PBGC. Accordingly, as 
provided in section 605 of the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.), sections 603 and 604 do not apply.

List of Subjects

29 CFR Part 4001

    Pensions.

29 CFR Part 4022

    Pension insurance, Pensions.

29 CFR Part 4044

    Pension insurance, Pensions.

    For the reasons given above, PBGC is amending 29 CFR parts 4001, 
4022, and 4044 as follows.

PART 4001--TERMINOLOGY

0
1. The authority citation for part 4001 continues to read as follows:

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


0
2. In Sec.  4001.2, add a definition for ``rollover amounts'' in 
alphabetical order to read as follows:


Sec.  4001.2  Definitions.

* * * * *
    Rollover amounts means the dollar amount of all or any part of a 
distribution that is rolled over from a defined contribution plan into 
a defined benefit plan in accordance with section 401(a)(31) or 402(c) 
or similar provisions under the Internal Revenue Code. Rollover amounts 
include salary deferral contributions made by the participant, any 
additional employer contributions provided for under the defined 
contribution plan, and earnings on both.
* * * * *

PART 4022--BENEFITS PAYABLE IN TERMINATED SINGLE-EMPLOYER PLANS

0
3. The authority citation for part 4022 continues to read as follows:

    Authority: 29 U.S.C. 1302, 1322, 1322(b), 1341(c)(3)(D), and 
1344.


Sec.  4022.2  [Amended]

0
4. In Sec.  4022.2, the definition of ``pension benefit'' is amended by 
adding at the end ``An annuity benefit resulting from a rollover amount 
is a pension benefit.''

0
5. Amend Sec.  4022.7 as follows:
0
a. In paragraph (b)(2)(i), add the phrase ``except as provided in 
paragraph (b)(2)(iii) of this section,'' after the words 
``Notwithstanding any other provision of this part,'';
0
b. Add paragraph (b)(2)(iii); and
0
c. Revise paragraph (c)(2).
    The addition and revision read as follows:


Sec.  4022.7  Benefits payable in a single installment.

* * * * *

[[Page 70095]]

    (b) * * *
    (2) * * *
    (iii) Rollover amounts. The rule in paragraph (b)(2) of this 
section (dealing with return of employee contributions) does not apply 
to a participant's accumulated mandatory employee contributions 
resulting from rollover amounts (as determined under Sec.  
4044.12(c)(4)(i) of this chapter) or the benefit derived from such 
mandatory employee contributions.
* * * * *
    (c) * * *
    (2) Exception. Except in the case of accumulated mandatory employee 
contributions resulting from rollover amounts (as determined under 
Sec.  4044.12(c)(4)(i) of this chapter), upon the death of a 
participant the PBGC may pay in a single installment (or a series of 
installments) that portion of the participant's accumulated mandatory 
employee contributions that is payable under the plan in a single 
installment (or a series of installments) upon the participant's death.
* * * * *

0
6. In Sec.  4022.8, add paragraph (f) to read as follows:


Sec.  4022.8  Form of payment.

* * * * *
    (f) Rollover amounts. The annuity benefit resulting from rollover 
amounts (as determined under Sec.  4044.12(c)(4) of this chapter) is 
combined with any other benefit under the plan and paid in the same 
form and at the same time as the other benefit.

0
7. In Sec.  4022.22, add paragraph (d) to read as follows:


Sec.  4022.22  Maximum guaranteeable benefit.

* * * * *
    (d) Rollover amounts. Any portion of a benefit derived from 
mandatory employee contributions resulting from rollover amounts (as 
determined under Sec.  4044.12(c)(4)(i) of this chapter) is disregarded 
in applying the provisions of Sec. Sec.  4022.22 and 4022.23. However, 
any portion of a benefit derived from employer contributions resulting 
from rollover amounts (as determined under Sec.  4044.12(c)(4)(ii) of 
this chapter) is combined with any other benefit under the plan for 
purposes of determining the maximum guaranteeable benefit under 
Sec. Sec.  4022.22 and 4022.23. For example, assume that a participant 
has an $80,000 total annual plan benefit at age 65, of which $15,000 is 
derived from mandatory employee contributions resulting from rollover 
amounts and $5,000 is derived from employer contributions resulting 
from rollover amounts. The $15,000 benefit derived from employee 
contributions resulting from rollover amounts would be excluded in the 
determination of the participant's maximum guaranteeable amount. The 
participant's remaining $65,000 benefit (including the $5,000 benefit 
derived from employer contributions resulting from rollover amounts) 
would be subject to the maximum guaranteeable benefit limitation. 
Assuming the plan terminated in 2014, the participant's maximum 
guaranteeable benefit of approximately $59,000 for a straight life 
annuity at age 65 would effectively be increased by the $15,000 benefit 
derived from employee contributions resulting from rollover amounts, 
resulting in total guaranteeable benefits of approximately $74,000. 
(The maximum guaranteeable benefit limitation would apply to the 
participant's benefit derived from employer contributions; as a result, 
$6,000 of the participant's benefit derived from employer contributions 
would not be guaranteeable by PBGC.)

0
8. In Sec.  4022.24, add paragraph (g) to read as follows:


Sec.  4022.24  Benefit increases.

* * * * *
    (g) Rollover amounts. Any portion of a benefit derived from 
mandatory employee contributions resulting from rollover amounts (as 
determined under Sec.  4044.12 (c)(4)(i) of this chapter) is 
disregarded in applying the provisions of Sec. Sec.  4022.24 through 
4022.26. However, any portion of a benefit derived from employer 
contributions resulting from rollover amounts (as determined under 
Sec.  4044.12(c)(4)(ii) of this chapter) is combined with any other 
benefit under the plan in applying the provisions of Sec. Sec.  4022.24 
through 4022.26. In such case, the benefit increase is deemed to be in 
effect on the date the rollover amounts are received by the plan.

PART 4044--ALLOCATION OF ASSETS IN SINGLE-EMPLOYER PLANS

0
9. The authority citation for part 4044 continues to read as follows:


    Authority: 29 U.S.C. 1301(a), 1302(b)(3), 1341, 1344, and 1362.

0
10. In 4044.12, paragraphs (b)(4) and (c)(4) are added to read as 
follows:


Sec.  4044.12  Priority category 2 benefits.

* * * * *
    (b) * * *
    (4) Rollover amounts. In the case of a benefit resulting from 
rollover amounts, notwithstanding the provisions of paragraph (b)(2) of 
this section, the interest rates and conversion factors in paragraph 
(c)(4) of this section are used to determine the portion of the accrued 
benefit derived from the employee's contributions and, if any, the 
portion of the accrued benefit derived from employer contributions.
    (c) * * *
    (4) Special rules for benefit resulting from rollover amounts. (i) 
Mandatory employee contributions. Notwithstanding paragraphs (c)(1) 
through (3) of this section, in the case of a benefit resulting from 
rollover amounts, the accrued benefit derived from mandatory employee 
contributions is determined using the interest rates and conversion 
factors under section 411(c)(2)(B) and (C) of the Code for purposes of 
computing an employee's accrued benefit derived from the employee's 
contributions. The annuity benefit and the pre-retirement death 
benefit, as determined on this basis, is the benefit resulting from 
rollover amounts in priority category 2.
    (ii) Employer contributions. Any portion of a participant's accrued 
benefit resulting from rollover amounts that is in excess of the 
accrued benefit derived from mandatory employee contributions 
determined in accordance with paragraph (c)(4)(i) of this section 
(i.e., the accrued benefit derived from employer contributions) is a 
guaranteeable benefit in priority category 3, priority category 4, or 
priority category 5, as applicable under this part.

    Issued in Washington, DC, this 18 day of November, 2014.
Alice C. Maroni,
Acting Director, Pension Benefit Guaranty Corporation .
[FR Doc. 2014-27826 Filed 11-24-14; 8:45 am]
BILLING CODE 7709-02-P