1726 Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Notices 

1Estimates of the number of hours are based on 

conversations withrepresentatives of mutual funds 

that comply with the rule. The actual number of 

hours may vary significantly depending on 

individual fund assets. The hour burden for rule 

17f–1 does not include preparing the custody 

contract because that would be part of customary 

and usual business practice. 

2Based on a review of Form N–17f–1 filings in 

2006 and2007, the Commission staff estimates that 

an average of 5 funds rely on rule 17f–1 each year. 

3This estimate is based on the following 

calculation: (5 respondents × 3.5 hours = 17.5 

hours). The annual burden for rule 17f–1 does not 

include time spent preparing Form N–17f–1. The 

burden for Form N–17f–1 is included in a separate 

collection of information. 

4This estimate is based on the following 

calculation: (2 hours of outside counsel time × $400 

= $800). The staff has estimated the average cost of 

outside counsel at $400 per hour, based on 

information received from funds, fund 

intermediaries, and their counsel. 

5This estimate is based on information received 

from fundrepresentatives estimating the aggregate 

annual cost of an independent public accountant’s 

periodic verification of assets and preparation of the 

certificate of examination. 

6This estimate is based on the following 

calculation: ($800 + $4000 =$4800). 

7This estimate is based on the following 

calculation: (5 funds × $4800 =$24,000). 

and Exchange Commission (the 

‘‘Commission’’) has submitted to the 

Office of Management and Budget a 

request for extension of the previously 

approved collection of information 

discussed below. 

Rule 17f–1 (17 CFR 270.17f–1) under 

the Investment Company Act of 1940 

(the ‘‘Act’’) (15 U.S.C. 80a) is entitled: 

‘‘Custody of Securities with Members of 

National Securities Exchanges.’’ Rule 

17f–1 provides that any registered 

management investment company 

(‘‘fund’’) that wishes to place its assets 

in the custody of a national securities 

exchange member may do so only under 

a written contract that must be ratified 

initially and approved annually by a 

majority of the fund’s board of directors. 

The written contract also must contain 

certain specified provisions. In addition, 

the rule requires an independent public 

accountant to examine the fund’s assets 

in the custody of the exchange member 

at least three times during the fund’s 

fiscal year. The rule requires the written 

contract and the certificate of each 

examination to be transmitted to the 

Commission. The purpose of the rule is 

to ensure the safekeeping of fund assets. 

Commission staff estimates that each 

fund makes 1 response and spends an 

average of 3.5 hours annually in 

complying with the rule’s requirements. 

Commission staff estimates that on an 

annual basis it takes: (i) 0.5 hours for the 

board of directors 1 to review and ratify 

the custodial contracts; and (ii) 3 hours 

for the fund’s controller to assist the 

fund’s independent public auditors in 

verifying the fund’s assets. 

Approximately 5 funds rely on the rule 

annually, with a total of 5 responses.2

Thus, the total annual hour burden for 

rule 17f–1 is approximately 17.5 hours.3

Funds that rely on rule 17f–1 

generally use outside counsel to prepare 

the custodial contract for the board’s 

review and to transmit the contract to 

the Commission. Commission staff 

estimates the cost of outside counsel to 

perform these tasks for a fund each year 

is $800.4 Funds also must have an 

independent public accountant verify 

the fund’s assets three times each year 

and prepare the certificate of 

examination. Commission staff 

estimates the annual cost for an 

independent public accountant to 

perform this service is $4000.5

Therefore, the total annual cost burden 

for a fund that relies on rule 17f–1 

would be approximately $4800.6 As 

noted above, the staff estimates that 5 

funds rely on rule 17f–1 each year, for 

an estimated total annualized cost 

burden of $24,000.7

The estimate of average burden hours 

is made solely for the purposes of the 

Paperwork Reduction Act, and is not 

derived from a comprehensive or even 

a representative survey or study of the 

costs of Commission rules. Compliance 

with the collections of information 

required by rule 17f–1 is mandatory for 

funds that place their assets in the 

custody of a national securities 

exchange member. Responses will not 

be kept confidential. An agency may not 

conduct or sponsor, and a person is not 

required to respond to a collection of 

information unless it displays a 

currently valid control number. 

Please direct general comments 

regarding the above information to the 

following persons: (i) Desk Officer for 

the Securities and Exchange 

Commission, Office of Management and 

Budget, Room 10102, New Executive 

Office Building, Washington, DC 20503 

or send an e-mail to: 

Shagufta_Ahmed@omb.eop.gov; and (ii) 

Charles Boucher, Director/CIO, 

Securities and Exchange Commission, 

C/O Shirley Martinson, 6432 General 

Green Way, Alexandria, VA 22312; or 

send an e-mail to: 

PRA_Mailbox@sec.gov. Comments must 

be submitted to OMB within 30 days of 

this notice. 

Dated: January 7, 2009. 

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–444 Filed 1–12–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Investment Company Act Release No. 

28579; 812–13397] 

Macquarie Global Infrastructure Total 

Return Fund Inc., et al.; Notice of 

Application 

January 6, 2009. 

AGENCY: Securities and Exchange 

Commission (‘‘Commission’’). 

ACTION: Notice of application under 

section 6(c) of the Investment Company 

Act of 1940 (‘‘Act’’) for an exemption 

from section 19(b) of the Act and rule 

19b–1 under the Act. 

SUMMARY OF APPLICATION: Applicants 

request an order to permit certain 

closed-end investment companies to 

make periodic distributions of long-term 

capital gains with respect to their 

outstanding common stock as frequently 

as twelve times each year, and as 

frequently as distributions are specified 

by or in accordance with the terms of 

any outstanding preferred stock that 

such investment companies may issue. 

APPLICANTS: Macquarie Global 

Infrastructure Total Return Fund Inc. 

(the ‘‘Fund’’) and Macquarie Capital 

Investment Management LLC (the 

‘‘Adviser’’). 

FILING DATES: June 15, 2007 and 

September 10, 2008. 

HEARING OR NOTIFICATION OF HEARING: An 

order granting the application will be 

issued unless the Commission orders a 

hearing. Interested persons may request 

a hearing by writing to the 

Commission’s Secretary and serving 

applicants with a copy of the request, 

personally or by mail. Hearing requests 

should be received by the Commission 

by 5:30 p.m. on February 2, 2009, and 

should be accompanied by proof of 

service on applicants, in the form of an 

affidavit or, for lawyers, a certificate of 

service. Hearing requests should state 

the nature of the writer’s interest, the 

reason for the request, and the issues 

contested. Persons who wish to be 

notified of a hearing may request 

notification by writing to the 

Commission’s Secretary. 

ADDRESSES: Secretary, Securities and 

Exchange Commission, 100 F Street, 

NE., Washington, DC 20549–1090; 

Applicants, 125 West 55th Street, New 

York, NY 10019, attention Richard C. 

Butt. 

FOR FURTHER INFORMATION CONTACT: 

Wendy Friedlander, Senior Counsel, at 

(202) 551–6837, or James M. Curtis, 

Branch Chief, at (202) 551–6825 

(Division of Investment Management, 

Office of Chief Counsel). 

Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Notices 1727 

1Applicants request that any order issued 

granting the relief requested in the application also 

apply to any closed-end investment company 

(‘‘fund’’) that in the future: (a) Is advised by the 

Adviser (including any successor in interest) or by 

any entity controlling, controlled by, or under 

common control (within the meaning of section 

2(a)(9) of the Act) with the Adviser; and (b) 

complies with the terms and conditions of the 

requested order. A successor in interest is limited 

to entities that result from a reorganization into 

another jurisdiction or a change in the type of 

business organization. 

SUPPLEMENTARY INFORMATION: The 

following is a summary of the 

application. The complete application 

may be obtained for a fee at the 

Commission’s Public Reference Room, 

100 F Street, NE., Washington, DC 

20549–1520 (telephone (202) 551–5850). 

Applicants’ Representations 

1. The Fund is a registered closed-end 

management investment company 

organized as a Maryland corporation 

that has total return and capital 

appreciation as its investment 

objectives.1 The common shares issued 

by the Fund are listed on the New York 

Stock Exchange. The Fund has not 

issued preferred stock but may do so in 

the future. Applicants believe that the 

Fund’s stockholders are generally 

conservative, dividend-sensitive 

investors who desire current income 

periodically and may favor a fixed 

distribution policy. 

2. The Adviser is registered under the 

Investment Advisers Act of 1940 and is 

responsible for the overall management 

of the Fund. The Adviser is a subsidiary 

of MIHI LLC, which is an indirect 

subsidiary of Macquarie Group Limited, 

which provides, with its affiliated 

entities, international financial and 

investment banking services. 

3. Applicants represent that prior to 

adopting any distribution policy in 

reliance on the requested order, the 

Fund’s Board of Directors (the ‘‘Board’’), 

including a majority of the members of 

the Board who are not ‘‘interested 

persons’’ of the Fund (the ‘‘Independent 

Directors’’) as defined in section 2(a)(19) 

of the Act, will request, and the Adviser 

will provide, such information as is 

reasonably necessary for the Board to 

make an informed decision of whether 

the Fund should adopt a distribution 

policy. Applicants represent that, in 

particular, the Board and the 

Independent Directors will review 

information regarding the purpose and 

terms of a proposed distribution policy, 

the likely effects of such policy on the 

Fund’s long-term total return (in 

relation to market price and net asset 

value (‘‘NAV’’) per common share) and 

the relationship between the Fund’s 

distribution rate on its common shares 

under the policy and the Fund’s total 

return on NAV per share. Applicants 

state that the Independent Directors also 

will consider what conflicts of interest 

the Adviser and the affiliated persons of 

the Adviser and the Fund might have 

with respect to the adoption or 

implementation of such policy. 

Applicants further state that after 

considering such information the Board, 

including the Independent Directors 

may approve a distribution policy and 

related plan (a ‘‘Plan’’) with respect to 

the Fund’s common shares if they 

determine that such policy and Plan 

would be consistent with the Fund’s 

investment objectives and in the best 

interests of the Fund’s common 

shareholders. 

4. Applicants state that the purpose of 

the Plan would be to permit the Fund 

to distribute to its stockholders as 

frequently as monthly a fixed 

percentage of the Fund’s market price or 

a fixed percentage of the Fund’s NAV 

per share, any of which may be adjusted 

from time to time. Applicants state that, 

under the Plan, the minimum annual 

distribution rate with respect to the 

Fund’s common stock would be 

independent of the Fund’s performance 

during any particular period, but would 

be expected to correlate with the Fund’s 

performance over time. Applicants 

further state that, except for 

extraordinary distributions and 

potential increases or decreases in the 

final dividend periods in light of the 

Fund’s performance for the entire 

calendar year and to enable the Fund to 

comply with the distribution 

requirements of Subchapter M of the 

Internal Revenue Code of 1986, as 

amended (the ‘‘Code’’), each 

distribution on the common stock 

would be at the stated rate then in 

effect. 

5. Applicants state that the Board also 

will adopt policies and procedures 

under rule 38a–1 under the Act that will 

be reasonably designed to ensure that all 

notices sent to stockholders with 

distributions under the Plan (‘‘Notices’’) 

comply with condition II below, and 

that all other written communications 

by the Fund or its agents regarding 

distributions under the Plan include the 

disclosure required by condition III 

below. Applicants state that the Board 

also will adopt policies and procedures 

that will require the Fund to keep 

records that demonstrate the Fund’s 

compliance with all of the conditions of 

the requested order and that are 

necessary for the Fund to form the basis 

for, or demonstrate the calculation of, 

the amounts disclosed in its Notices. 

Applicants state that such records will 

be maintained for a period of at least six 

years from the date of the Board meeting 

at which the Plan is adopted, the first 

two years in an easily accessible place, 

or such longer period as may otherwise 

be required by law. 

Applicants’ Legal Analysis 

1. Section 19(b) generally makes it 

unlawful for any registered investment 

company to make long-term capital 

gains distributions more than once each 

year. Rule 19b–1 limits the number of 

capital gains dividends, as defined in 

section 852(b)(3)(C) of the Code 

(‘‘distributions’’), that a fund may make 

with respect to any one taxable year to 

one, plus a supplemental ‘‘clean up’’ 

distribution made pursuant to section 

855 of the Code not exceeding 10% of 

the total amount distributed for the year, 

plus one additional capital gain 

dividend made in whole or in part to 

avoid the excise tax under section 4982 

of the Code. 

2. Section 6(c) provides that the 

Commission may, by order upon 

application, conditionally or 

unconditionally exempt any person, 

security, or transaction, or any class or 

classes of persons, securities or 

transactions, from any provision of the 

Act, if and to the extent that the 

exemption is necessary or appropriate 

in the public interest and consistent 

with the protection of investors and the 

purposes fairly intended by the policy 

and provisions of the Act. 

3. Applicants state that the one of the 

concerns underlying section 19(b) and 

rule 19b–1 is that shareholders might be 

unable to differentiate between regular 

distributions of capital gains and 

distributions of investment income. 

Applicants state, however, that rule 

19a–1 effectively addresses this concern 

by requiring that a separate statement 

showing the sources of a distribution 

(e.g., estimated net income, net shortterm capital gains, net long-term capital 

gains and/or return of capital) 

accompany any distributions (or the 

confirmation of the reinvestment of 

distributions) estimated to be sourced in 

part from capital gains or capital. 

Applicants state that the same 

information also is included in annual 

reports to shareholders and on its IRS 

Form 1099–DIV, which is sent to each 

common and preferred shareholder who 

received distributions during the year. 

4. Applicants further state that the 

Fund will make the additional 

disclosures required by the conditions 

set forth below, and will adopt 

compliance policies and procedures in 

accordance with rule 38a–1 to ensure 

that all required Notices and disclosures 

are sent to shareholders. Applicants 

argue that by providing the information 

1728 Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Notices 

2Returns of capital as used in the application 

means return of capital for financial accounting 

purposes and not for tax accounting purposes. 

3Applicants state that a future fund that relies on 

the requested order will satisfy each of the 

representations in the application except that such 

representations will be made in respect of actions 

by the board of directors of such future fund and 

will be made at a future time. 

required by section 19(a) and rule 19a– 

1, and by complying with the 

procedures adopted under the Plan and 

the conditions listed below, the Fund 

will ensure that its shareholders are 

provided sufficient information to 

understand that their periodic 

distributions are not tied to the Fund’s 

net investment income (which for this 

purpose is the Fund’s taxable income 

other than from capital gains) and 

realized capital gains to date, and may 

not represent yield or investment return. 

Applicants also state that compliance 

with the Fund’s compliance procedures 

and condition III set forth below will 

ensure that prospective shareholders 

and third parties are provided with the 

same information. Accordingly, 

applicants assert that continuing to 

subject the Fund to section 19(b) and 

rule 19b–1 would afford shareholders 

no extra protection. 

5. Applicants note that section 19(b) 

and rule 19b–1 also were intended to 

prevent certain improper sales practices, 

including, in particular, the practice of 

urging an investor to purchase shares of 

a fund on the basis of an upcoming 

capital gains dividend (‘‘selling the 

dividend’’), where the dividend would 

result in an immediate corresponding 

reduction in NAV and would be in 

effect a taxable return of the investor’s 

capital. Applicants assert that the 

‘‘selling the dividend’’ concern should 

not apply to closed-end investment 

companies, such as, which do not 

continuously distribute shares. 

According to Applicants, if the 

underlying concern extends to 

secondary market purchases of shares of 

closed-end funds that are subject to a 

large upcoming capital gains dividend, 

adoption of a Plan actually helps 

minimize the concern by avoiding, 

through periodic distributions, any 

buildup of large end-of-the-year 

distributions. 

6. Applicants also note that common 

shares of closed-end funds that invest 

primarily in equity securities often trade 

in the marketplace at a discount to their 

NAV. Applicants believe that this 

discount may be reduced for closed-end 

funds that pay relatively frequent 

dividends on their common shares at a 

consistent rate, whether or not those 

dividends contain an element of longterm capital gain. 

7. Applicants assert that the 

application of rule 19b–1 to a Plan 

actually could have an undesirable 

influence on portfolio management 

decisions. Applicants state that, in the 

absence of an exemption from rule 

19b–1, the implementation of a Plan 

imposes pressure on management (i) not 

to realize any net long-term capital gains 

until the point in the year that the fund 

can pay all of its remaining distributions 

in accordance with rule 19b–1, and (ii) 

not to realize any long-term capital 

gains during any particular year in 

excess of the amount of the aggregate 

pay-out for the year (since as a practical 

matter excess gains must be distributed 

and accordingly would not be available 

to satisfy pay-out requirements in 

following years), notwithstanding that 

purely investment considerations might 

favor realization of long-term gains at 

different times or in different amounts. 

Applicants thus assert that the 

limitation on the number of capital gain 

distributions that a fund may make with 

respect to any one year imposed by rule 

19b–1, may prevent the efficient 

operation of a Plan whenever that fund’s 

realized net long-term capital gains in 

any year exceed the total of the periodic 

distributions that may include such 

capital gains under the rule. 

8. In addition, Applicants assert that 

rule 19b–1 may cause fixed regular 

periodic distributions under a Plan to be 

funded with returns of capital 2 (to the 

extent net investment income and 

realized short-term capital gains are 

insufficient to fund the distribution), 

even though realized net long-term 

capital gains otherwise could be 

available. To distribute all of a fund’s 

long-term capital gains within the limits 

in rule 19b–1, a fund may be required 

to make total distributions in excess of 

the annual amount called for by its Plan, 

or to retain and pay taxes on the excess 

amount. Applicants thus assert that the 

requested order would minimize these 

effects of rule 19b–1 by enabling the 

funds to realize long-term capital gains 

as often as investment considerations 

dictate without fear of violating rule 

19b–1. 

9. Applicants state that Revenue 

Ruling 89–81 under the Code requires 

that a fund that has both common stock 

and preferred stock outstanding 

designate the types of income, e.g., 

investment income and capital gains, in 

the same proportion as the total 

distributions distributed to each class 

for the tax year. To satisfy the 

proportionate designation requirements 

of Revenue Ruling 89–81, whenever a 

fund has realized a long-term capital 

gain with respect to a given tax year, the 

fund must designate the required 

proportionate share of such capital gain 

to be included in common and preferred 

stock dividends. Applicants state that 

although rule 19b–1 allows a fund some 

flexibility with respect to the frequency 

of capital gains distributions, a fund 

might use all of the exceptions available 

under the rule for a tax year and still 

need to distribute additional capital 

gains allocated to the preferred stock to 

comply with Revenue Ruling 89–81. 

10. Applicants assert that the 

potential abuses addressed by section 

19(b) and rule 19b–1 do not arise with 

respect to preferred stock issued by a 

closed-end fund. Applicants assert that 

such distributions are fixed or 

determined in periodic auctions by 

reference to short-term interest rates 

rather than by reference to performance 

of the issuer and Revenue Ruling 89–81 

determines the proportion of such 

distributions that are comprised of the 

long-term capital gains. 

11. Applicants also submit that the 

‘‘selling the dividend’’ concern is not 

applicable to preferred stock, which 

entitles a holder to no more than a 

periodic dividend at a fixed rate or the 

rate determined by the market, and, like 

a debt security, is priced based upon its 

liquidation value, credit quality, and 

frequency of payment. Applicants state 

that investors buy preferred shares for 

the purpose of receiving payments at the 

frequency bargained for, and do not 

expect the liquidation value of their 

shares to change. 

12. Applicants request an order under 

section 6(c) granting an exemption from 

the provisions of section 19(b) and rule 

19b–1 to permit the Fund’s common 

stock to distribute periodic capital gains 

dividends (as defined in section 

852(b)(3)(C) of the Code) as often as 

monthly in any one taxable year in 

respect of its common shares and as 

often as specified by or determined in 

accordance with the terms thereof in 

respect of its preferred shares.3

Applicants’ Conditions 

Applicants agree that, with respect to 

each fund seeking to rely on the order, 

the order will be subject to the following 

conditions: 

I. Compliance Review and Reporting 

The fund’s chief compliance officer 

will: (a) Report to the fund Board, no 

less frequently than once every three 

months or at the next regularly 

scheduled quarterly board meeting, 

whether (i) the fund and the Adviser 

have complied with the conditions to 

the requested order, and (ii) a Material 

Compliance Matter, as defined in rule 

38a–1(e)(2), has occurred with respect to 

Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Notices 1729 

4This disclosure will be included only if the 

current distribution or the fiscal year-to-date 

cumulative distributions are estimated to include a 

return of capital. 

compliance with such conditions; and 

(b) review the adequacy of the policies 

and procedures adopted by the fund no 

less frequently than annually. 

II. Disclosures to Fund Shareholders 

A. Each Notice to the holders of the 

fund’s common shares, in addition to 

the information required by section 

19(a) and rule 19a–1: 

1. Will provide, in a tabular or 

graphical format: 

(a) The amount of the distribution, on 

a per common share basis, together with 

the amounts of such distribution 

amount, on a per common share basis 

and as a percentage of such distribution 

amount, from estimated: (A) Net 

investment income; (B) net realized 

short-term capital gains; (C) net realized 

long-term capital gains; and (D) return 

of capital or other capital source; 

(b) The fiscal year-to-date cumulative 

amount of distributions, on a per 

common share basis, together with the 

amounts of such cumulative amount, on 

a per common share basis and as a 

percentage of such cumulative amount 

of distributions, from estimated: (A) net 

investment income; (B) net realized 

short-term capital gains; (C) net realized 

long-term capital gains; and (D) return 

of capital or other capital source; 

(c) The average annual total return in 

relation to the change in NAV for the 5- 

year period (or, if the fund’s history of 

operations is less than five years, the 

time period commencing immediately 

following the fund’s first public 

offering) ending on the last day of the 

month prior to the most recent 

distribution declaration date compared 

to the current fiscal period’s annualized 

distribution rate expressed as a 

percentage of NAV as of the last day of 

the month prior to the most recent 

distribution declaration date; and 

(d) The cumulative total return in 

relation to the change in NAV from the 

last completed fiscal year to the last day 

of the month prior to the most recent 

distribution declaration date compared 

to the fiscal year-to-date cumulative 

distribution rate expressed as a 

percentage of NAV as of the last day of 

the month prior to the most recent 

distribution declaration date. 

Such disclosure shall be made in a 

type size at least as large and as 

prominent as the estimate of the sources 

of the current distribution; and 

2. Will include the following 

disclosure: 

(a) ‘‘You should not draw any 

conclusions about the fund’s investment 

performance from the amount of this 

distribution or from the terms of the 

fund’s Plan’’; 

(b) ‘‘The fund estimates that it has 

distributed more than its income and 

net realized capital gains; therefore, a 

portion of your distribution may be a 

return of capital. A return of capital may 

occur for example, when some or all of 

the money that you invested in the fund 

is paid back to you. A return of capital 

distribution does not necessarily reflect 

the fund’s investment performance and 

should not be confused with ‘yield’ or 

‘income’ ’’; 4 and 

(c) ‘‘The amounts and sources of 

distributions reported in this Notice are 

only estimates and are not being 

provided for tax reporting purposes. The 

actual amounts and sources of the 

amounts for [accounting and] tax 

reporting purposes will depend upon 

the fund’s investment experience during 

the remainder of its fiscal year and may 

be subject to changes based on tax 

regulations. The fund will send you a 

Form 1099–DIV for the calendar year 

that will tell you how to report these 

distributions for federal income tax 

purposes.’’ 

Such disclosure shall be made in a 

type size at least as large as and as 

prominent as any other information in 

the Notice and placed on the same page 

in close proximity to the amount and 

the sources of the distribution. 

B. On the inside front cover of each 

report to shareholders under rule 

30e–1 under the Act, the fund will: 

1. Describe the terms of the Plan 

(including the fixed amount or fixed 

percentage of the distributions and the 

frequency of the distributions); 

2. Include the disclosure required by 

condition II.A.2.a above; 

3. State, if applicable, that the Plan 

provides that the Board may amend or 

terminate the Plan at any time without 

prior notice to fund shareholders; and 

4. Describe any reasonably foreseeable 

circumstances that might cause the fund 

to terminate the Plan and any 

reasonably foreseeable consequences of 

such termination. 

C. Each report provided to 

shareholders under rule 30e–1 and in 

each prospectus filed with the 

Commission on Form N–2 under the 

Act, will provide the fund’s total return 

in relation to changes in NAV in the 

financial highlights table and in any 

discussion about the fund’s total return. 

III. Disclosure to Shareholders, 

Prospective Shareholders and Third 

Parties 

A. The fund will include the 

information contained in the relevant 

Notice, including the disclosure 

required by condition II.A.2 above, in 

any written communication (other than 

a Form 1099) about the Plan or 

distributions under the Plan by the 

fund, or agents that the fund has 

authorized to make such 

communication on the fund’s behalf, to 

any fund common shareholder, 

prospective common shareholder or 

third-party information provider; 

B. The fund will issue, 

contemporaneously with the issuance of 

any Notice, a press release containing 

the information in the Notice and will 

file with the Commission the 

information contained in such Notice, 

including the disclosure required by 

condition II.A.2 above, as an exhibit to 

its next filed Form N–CSR; and 

C. The fund will post prominently a 

statement on its (or the Adviser’s) Web 

site containing the information in each 

Notice, including the disclosure 

required by condition II.A.2 above, and 

will maintain such information on such 

Web site for at least 24 months. 

IV. Delivery of 19(a) Notices to 

Beneficial Owners 

If a broker, dealer, bank or other 

person (‘‘financial intermediary’’) holds 

common stock issued by the fund in 

nominee name, or otherwise, on behalf 

of a beneficial owner, the fund: (a) Will 

request that the financial intermediary, 

or its agent, forward the Notice to all 

beneficial owners of the fund’s shares 

held through such financial 

intermediary; (b) will provide, in a 

timely manner, to the financial 

intermediary, or its agent, enough 

copies of the Notice assembled in the 

form and at the place that the financial 

intermediary, or its agent, reasonably 

requests to facilitate the financial 

intermediary’s sending of the Notice to 

each beneficial owner of the fund’s 

shares; and (c) upon the request of any 

financial intermediary, or its agent, that 

receives copies of the Notice, will pay 

the financial intermediary, or its agent, 

the reasonable expenses of sending the 

Notice to such beneficial owners. 

V. Additional Board Determinations for 

Funds Whose Shares Trade at a 

Premium 

If: 

A. The fund’s common shares have 

traded on the exchange that they 

primarily trade on at the time in 

question at an average premium to NAV 

equal to or greater than 10%, as 

determined on the basis of the average 

of the discount or premium to NAV of 

the fund’s common shares as of the 

close of each trading day over a 12-week 

rolling period (each such 12-week 

1730 Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Notices 

5 If the fund has been in operation fewer than six 

months, the measured period will begin 

immediately following the fund’s first public 

offering. 

6 If the fund has been in operation fewer than five 

years, the measured period will begin immediately 

following the fund’s first public offering. 

rolling period ending on the last trading 

day of each week); and 

B. The fund’s annualized distribution 

rate for such 12-week rolling period, 

expressed as a percentage of NAV as of 

the ending date of such 12-week rolling 

period, is greater than the fund’s average 

annual total return in relation to the 

change in NAV over the 2-year period 

ending on the last day of such 12-week 

rolling period; then: 

1. At the earlier of the next regularly 

scheduled meeting or within four 

months of the last day of such 12-week 

rolling period, the Board including a 

majority of the Independent Directors: 

(a) Will request and evaluate, and the 

Adviser will furnish, such information 

as may be reasonably necessary to make 

an informed determination of whether 

the Plan should be continued or 

continued after amendment; 

(b) Will determine whether 

continuation, or continuation after 

amendment, of the Plan is consistent 

with the fund’s investment objective(s) 

and policies and in the best interests of 

the fund and its shareholders, after 

considering the information in 

condition V.B.1.a above; including, 

without limitation: 

(1) Whether the Plan is accomplishing 

its purpose(s); 

(2) The reasonably foreseeable effects 

of the Plan on the fund’s long-term total 

return in relation to the market price 

and NAV of the fund’s common shares; 

and 

(3) The fund’s current distribution 

rate, as described in condition V.B 

above, compared with the fund’s 

average annual total return over the 2- 

year period, as described in condition 

V.B., or such longer period as the board 

deems appropriate; and 

(c) Based upon that determination, 

will approve or disapprove the 

continuation, or continuation after 

amendment, of the Plan; and 

2. The Board will record the 

information considered by it and the 

basis for its approval or disapproval of 

the continuation, or continuation after 

amendment, of the Plan in its meeting 

minutes, which must be made and 

preserved for a period of not less than 

six years from the date of such meeting, 

the first two years in an easily accessible 

place. 

VI. Public Offerings 

The fund will not make a public 

offering of the fund’s common shares 

other than: 

A. A rights offering below net asset 

value to holders of the fund’s common 

stock; 

B. An offering in connection with a 

dividend reinvestment plan, merger, 

consolidation, acquisition, spin-off or 

reorganization of the fund; or 

C. An offering other than an offering 

described in conditions VI.A and VI.B 

above, unless, with respect to such other 

offering: 

1. The fund’s average annual 

distribution rate for the six months 

ending on the last day of the month 

ended immediately prior to the most 

recent distribution declaration date,5

expressed as a percentage of NAV per 

share as of such date, is no more than 

1 percentage point greater than the 

fund’s average annual total return for 

the 5-year period ending on such date;6

and 

2. The transmittal letter 

accompanying any registration 

statement filed with the Commission in 

connection with such offering discloses 

that the fund has received an order 

under section 19(b) to permit it to make 

periodic distributions of long-term 

capital gains with respect to its common 

stock as frequently as twelve times each 

year, and as frequently as distributions 

are specified in accordance with the 

terms of any outstanding preferred stock 

that such fund may issue. 

VII. Amendments to Rule 19b–1 

The requested relief will expire on the 

effective date of any amendment to rule 

19b–1 that provides relief permitting 

certain closed-end investment 

companies to make periodic 

distributions of long-term capital gains 

with respect to their outstanding 

common stock as frequently as twelve 

times each year. 

For the Commission, by the Division of 

Investment Management, under delegated 

authority. 

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–440 Filed 1–12–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Investment Company Act Release No. 

28578; 812–13239] 

SunAmerica Focused Alpha Growth 

Fund, Inc., et al.; Notice of Application 

January 6, 2009. 

AGENCY: Securities and Exchange 

Commission (‘‘Commission’’). 

ACTION: Notice of application under 

section 6(c) of the Investment Company 

Act of 1940 (‘‘Act’’) for an exemption 

from section 19(b) of the Act and rule 

19b–1 under the Act. 

SUMMARY OF APPLICATION: Applicants 

request an order to permit certain 

closed-end investment companies to 

make periodic distributions of long-term 

capital gains with respect to their 

outstanding common stock as frequently 

as twelve times each year, and as 

frequently as distributions are specified 

by or in accordance with the terms of 

any outstanding preferred stock that 

such investment companies may issue. 

APPLICANTS: SunAmerica Focused 

Alpha Growth Fund, Inc. (‘‘FGF’’), 

SunAmerica Focused Alpha Large-Cap 

Fund, Inc. (‘‘FGI’’) and AIG SunAmerica 

Asset Management Corp. (the 

‘‘Adviser’’). 

FILING DATES: October 17, 2005 and 

September 2, 2008. 

HEARING OR NOTIFICATION OF HEARING: 

An order granting the application will 

be issued unless the Commission orders 

a hearing. Interested persons may 

request a hearing by writing to the 

Commission’s Secretary and serving 

applicants with a copy of the request, 

personally or by mail. Hearing requests 

should be received by the Commission 

by 5:30 p.m. on February 2, 2009, and 

should be accompanied by proof of 

service on applicants, in the form of an 

affidavit or, for lawyers, a certificate of 

service. Hearing requests should state 

the nature of the writer’s interest, the 

reason for the request, and the issues 

contested. Persons who wish to be 

notified of a hearing may request 

notification by writing to the 

Commission’s Secretary. 

ADDRESSES: Secretary, Securities and 

Exchange Commission, 100 F Street, 

NE., Washington, DC 20549–1090; 

Applicants, c/o AIG SunAmerica Asset 

Management Corp., Harborside 

Financial Center, 3200 Plaza 5, Jersey 

City, NJ 07311–4992, Attention: Gregory 

N. Bressler. 

FOR FURTHER INFORMATION CONTACT: 

Wendy Friedlander, Senior Counsel, at 

(202) 551–6837, or James M. Curtis, 

Branch Chief, at (202) 551–6825 

(Division of Investment Management, 

Office of Chief Counsel). 

SUPPLEMENTARY INFORMATION: The 

following is a summary of the 

application. The complete application 

may be obtained for a fee at the 

Commission’s Public Reference Room, 

100 F Street, NE., Washington, DC 

20549–1520 (telephone (202) 551–5850).