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###### Department of Labor

###### Employee Benefits Security Administration

# AGENCY:

Employee Benefits Security Administration, Department of Labor (the Department).

# ACTION:

Notice of technical correction and clarification.

                    In the September 16, 2010 issue of the                     **Federal Register**                    , the Department published PTE 2010-26 at 75 FR 56564, which is an administrative exemption from the prohibited transaction provisions of the Employee Retirement Income Security Act of 1974 and the Internal Revenue Code of 1986, as amended, for PNC Financial Services Group, Inc; the corresponding Notice of Proposed Exemption (the Notice) was published at 75 FR 22853 on April 30, 2010.                

This document will provide corrections and clarifications with respect to certain statements contained in PTE 2010-26 and the Notice.

## 1. Renumbering

To correct the numbering errors for PTE 2010-26, the second reference of Section II(a) should be revised to become Section II(b) and subsequent paragraphs should be revised in corresponding sequential order. Accordingly, the last two recordkeeping paragraphs in Section II of PTE 2010-26 should be identified as Section II(o) and (p).

## 2. Use of the Term Affiliate

Section II(a)(1) of PTE 2010-26 and the Notice read:

A Client Plan invested in a Fund does not pay any plan-level investment management fee, investment advisory fee or similar fee (Plan-Level Fee(s)) to PNC or its affiliates with respect to any of the assets of such Client Plan which are invested in shares of such Funds for the entire period of such investment (the Offset Fee Method). 

The Department hereby deletes the phrase “or its affiliates” from Section II(a)(1) of PTE 2010-26 and the Notice.

## 3. Independent Audit Disclosures

Section II(m)(3) of PTE 2010-26 (as corrected by this document) and the Notice states:

A copy of the annual financial disclosure report which includes information about Fund portfolios, as well as the audit findings of an independent auditor, within (60) days of the preparation of such report; and 

The Department deletes the following phrase in Section II(m)(3):

“,as well as the audit findings of an independent auditor,”.

The Department adds the following new paragraph to Section II(m)(5) of PTE 2010-26 (as corrected by this document) and the Notice:

A copy of the audit findings prepared by the independent Auditor, as required by Section II(a)(3), is provided by PNC at least annually within sixty (60) days of the completion of the report of such audit findings, to the Second Fiduciary of those Client Plans using the Credit Fee method as described in Section II(a)(3). 

The last sentence of the second paragraph of Representation 18 of the Notice states the following:

Specifically, on an annual basis, such Second Fiduciary receives copies of the current Fund prospectuses, as well as copies of the annual financial disclosure reports containing information about the Funds and audit findings of the Auditor within sixty (60) days of the preparation of such report.

The Department hereby restates the last sentence of the second paragraph of Representation 18 of the Notice to read as follows:

Specifically, on an annual basis, such Second Fiduciary receives copies of the current Fund prospectuses, as well as copies of the annual financial disclosure reports, and for Client Plans investing in the Funds pursuant to the Credit Fee Method, reports with respect to the audit findings of the Auditor containing information about the Funds within sixty (60) days of the preparation of such report. 

## 4. Custodial Services

The Department notes that the last sentence of Representation 3 of the Notice states:

However, the custodian for the Client Plans is not a PNC affiliate. 

The Department deletes and replaces the last sentence of Representation 3 of the Notice as follows:

However, the custodian for the PNC Funds is not a PNC affiliate. 

## 5. PNC's Compliance With PTE 77-4

The second sentence of Representation 9 in the Notice states that:

In addition, PNC has satisfied certain conditions in PTE 77-4.

The Department deletes this sentence and replaces it with the following sentence:

In addition, PNC represents it has satisfied all the conditions in PTE 77-4.

## 6. Technical Clarifications

The first paragraph of Section II(h) of the Notice and PTE 2010-26 (as corrected by this document) states:

A second fiduciary (Second Fiduciary), as defined below in Section III, who is acting on behalf of a Client Plan receives, in advance of any initial investment by a Plan Client in a Fund, full and detailed written disclosure of information concerning such Fund including but not limited to:

The Department deletes the term “Plan Client” and inserts “Client Plan” in lieu thereof. The Department corrects the first paragraph of Section II(h) of the Notice and PTE 2010-26 to read as follows:

A second fiduciary (Second Fiduciary), as defined below in Section III, who is acting on behalf of a Client Plan receives, in advance of any initial investment by a Client Plan in a Fund, full and detailed written disclosure of information concerning such Fund including but not limited to:

Additionally, Section III(k)(1) of the Notice states:

PNC is open for conducting all or substantially or substantially all of its banking functions, and 
      ( print page 71152)    
The Department corrects Section III(k)(1) of the Notice and PTE 2010-26 to state:

PNC is open for conducting all or substantially all of its banking functions, and

# FOR FURTHER INFORMATION CONTACT:

Mr. Anh-Viet Ly of the Department at (202) 693-8648. (This is not a toll-free number.)

Signed at Washington, DC, this 17th day of  November, 2010.

Ivan L. Strasfeld,

Director of Exemption Determinations, Employee Benefits Security Administration, U.S. Department of Labor.

[FR Doc. 2010-29342 Filed 11-19-10; 8:45 am]

BILLING CODE 4510-29-P