9438 Federal Register / Vol. 74, No. 41 / Wednesday, March 4, 2009 / Notices 

radiological plant effluents and has no 

other environmental impact. Therefore, 

there are no significant non-radiological 

environmental impacts associated with 

the proposed action. 

Accordingly, the NRC concludes that 

there are no significant environmental 

impacts associated with the proposed 

action. 

Environmental Impacts of the 

Alternatives to the Proposed Action 

As an alternative to the proposed 

action, the NRC staff considered denial 

of the proposed action (i.e., the ‘‘noaction’’ alternative). Denial of the 

application would result in no change 

in current environmental impacts. The 

environmental impacts of the proposed 

action and the alternative action are 

similar. 

Alternative Use of Resources 

The action does not involve the use of 

any different resources than those 

previously considered in the Final 

Environmental Statement Related to the 

Operation of Three Mile Island Nuclear 

Station, Units 1 and 2, NUREG–0552, 

dated December 1972. 

Agencies and Persons Consulted 

In accordance with its stated policy, 

on January 30, 2009, the NRC staff 

consulted with the Pennsylvania State 

official, Michael Murphy of the 

Pennsylvania State Department of 

Environmental Protection, regarding the 

environmental impact of the proposed 

action. The State official had no 

comments. 

Finding of No Significant Impact 

On the basis of the environmental 

assessment, the NRC concludes that the 

proposed action will not have a 

significant effect on the quality of the 

human environment. Accordingly, the 

NRC has determined not to prepare an 

environmental impact statement for the 

proposed action. 

For further details with respect to the 

proposed action, see the licensee’s letter 

dated February 4, 2008, as 

supplemented on January 28, 2009, 

ADAMS accession numbers 

ML080350369 and ML090280577, 

respectively. Documents may be 

examined, and/or copied for a fee, at the 

NRC’s Public Document Room (PDR), 

located at One White Flint North, Public 

File Area O1 F21, 11555 Rockville Pike 

(first floor), Rockville, Maryland. 

Publicly available records will be 

accessible electronically from the 

ADAMS Public Electronic Reading 

Room on the Internet at the NRC Web 

site, http://www.nrc.gov/reading-rm/ 

adams.html. Persons who do not have 

access to ADAMS or who encounter 

problems in accessing the documents 

located in ADAMS should contact the 

NRC PDR Reference staff by telephone 

at 1–800–397–4209 or 301–415–4737, or 

send an e-mail to pdr@nrc.gov. 

Dated at Rockville, Maryland, this 24th day 

of February 2009. 

For the Nuclear Regulatory Commission. 

Peter Bamford, 

Project Manager, Plant Licensing Branch I– 

2, Division of Operating Reactor Licensing, 

Office of Nuclear Reactor Regulation. 

[FR Doc. E9–4565 Filed 3–3–09; 8:45 am] 

BILLING CODE 7590–01–P 

OFFICE OF THE UNITED STATES 

TRADE REPRESENTATIVE 

Notice of Meeting of the Industry Trade 

Advisory Committee on Small and 

Minority Business (ITAC–11) 

AGENCY: Office of the United States 

Trade Representative. 

ACTION: Correcting Date of Notice of a 

Partially Opened ITAC–11 Meeting 

(Published in FR Volume 74, Page 

8819). 

SUMMARY: The correct date for The 

Industry Trade Advisory Committee on 

Small and Minority Business (ITAC–11) 

published in Federal Register Volume 

74 page 8819 is Monday, March 9, 2009. 

The meeting will be closed to the public 

from 9 a.m. to 12:30 p.m. and opened 

to the public from 1 p.m. to 3:30 p.m. 

DATES: The meeting is scheduled for 

March 9, 2009, unless otherwise 

notified. 

ADDRESSES: The meeting will be held at 

the U.S. Department of Commerce, 

Room B41–A/B, located at 14th Street 

and Constitution Avenue, NW., 

Washington, DC. 

FOR FURTHER INFORMATION CONTACT: 

Laura Hellstern, DFO for ITAC–11 at 

(202) 482–3222, Department of 

Commerce, 14th Street and Constitution 

Avenue, NW., Washington, DC 20230. 

SUPPLEMENTARY INFORMATION: During the 

opened portion of the meeting the 

following agenda items will be 

considered. 

• Status of U.S. Commercial Service 

Activities for FY09. 

• The TPCC Agencies and Their Role 

in Export Promotion and Trade Policy. 

Christina R. Sevilla. 

Acting Assistant U.S. Trade Representative 

for Intergovernmental Affairs and Public 

Liaison. 

[FR Doc. E9–4611 Filed 3–3–09; 8:45 am] 

BILLING CODE 3190–W9–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Investment Company Act Release No. 

28637; 812–13541] 

DFA Investment Dimensions Group 

Inc., et al.; Notice of Application 

February 26, 2009. 

AGENCY: Securities and Exchange 

Commission (‘‘Commission’’). 

ACTION: Notice of an application for an 

order under section 12(d)(1)(J) of the 

Investment Company Act of 1940 (the 

‘‘Act’’) for exemption from sections 

12(d)(1)(A) and (B) of the Act and under 

sections 6(c) and 17(b) of the Act for an 

exemption from section 17(a) of the Act. 

SUMMARY OF THE APPLICATION: The order 

would permit certain management 

investment companies and unit 

investment trusts registered under the 

Act to acquire shares of certain openend management investment companies 

or unit investment trusts registered 

under the Act that are outside of the 

same group of investment companies as 

the acquiring investment companies. 

APPLICANTS: DFA Investment 

Dimensions Group Inc. (‘‘DFAIDG’’), 

Dimensional Emerging Markets Value 

Fund Inc. (‘‘DEM’’), Dimensional 

Investment Group Inc. (‘‘DIG’’), and The 

DFA Investment Trust Company 

(‘‘DFAITC,’’ and together with DFAIDG, 

DEM, and DIG, the ‘‘Trusts’’) and 

Dimensional Fund Advisors LP 

(‘‘Advisor’’). 

FILING DATES: The application was filed 

on June 11, 2008, and amended on 

December 8, 2008. Applicants have 

agreed to file an amendment during the 

notice period, the substance of which is 

reflected in this notice. 

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 March 23, 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, U.S. Securities 

and Exchange Commission, 100 F 

Street, NE., Washington, DC 20549– 

Federal Register / Vol. 74, No. 41 / Wednesday, March 4, 2009 / Notices 9439 

1A Fund of Funds (as defined below) may not 

invest in a Fund that serves as a feeder Fund unless 

the feeder Fund is part of the same group of 

investment companies as its corresponding master 

fund. 

2All references to the term ‘‘Advisor’’ herein 

include successors-in-interest to the Advisor. 

Successors-in-interest are limited to any entity 

resulting from a reorganization of the Advisor into 

another jurisdiction or a change in the type of 

business organization. 

3All entities that currently intend to rely on the 

requested order are named as applicants. Any other 

entity that relies on the order in the future will 

comply with the terms and conditions of the 

application. A Fund of Funds may rely on the 

requested order only to invest in the Funds and not 

in any other registered investment company. 

1090; Applicants, 2901 Via Fortuna, 

Terrace V, Floor 2, Austin, TX 78746. 

FOR FURTHER INFORMATION CONTACT: Jill 

Ehrlich, Attorney Adviser, at (202) 551– 

6819, or Mary Kay Frech, Branch Chief, 

at (202) 551–6821 (Division of 

Investment Management, Office of 

Investment Company Regulation). 

SUPPLEMENTARY INFORMATION: The 

following is a summary of the 

application. The complete application 

may be obtained for a fee at the Public 

Reference Desk, U.S. Securities and 

Exchange Commission, 100 F Street, 

NE., Washington DC 20549–0102 

(telephone (202) 551–5850). 

Applicants’ Representations 

1. The Trusts are open-end 

management investment companies 

registered under the Act and are each 

comprised of separate series (each, a 

‘‘Fund’’ and collectively the ‘‘Funds’’) 

that pursue distinct investment 

objectives and strategies. Each of 

DFAIDG, DEM, and DIG is organized as 

a Maryland corporation. DFAITC is 

organized as a Delaware statutory trust. 

Certain Funds pursue their investment 

objectives through a master-feeder 

arrangement in reliance on section 

12(d)(1)(E) of the Act.1 The Advisor is 

a Delaware limited partnership and is 

registered as an investment adviser 

under the Investment Advisers Act of 

1940 (‘‘Advisers Act’’).2 The Advisor 

serves as investment adviser to those 

Funds that invest directly in portfolio 

securities. 

2. Applicants request relief to permit 

registered management investment 

companies (‘‘Investing Management 

Companies’’) and registered unit 

investment trusts (‘‘Investing Trusts,’’ 

and together with the Investing 

Management Companies, ‘‘Funds of 

Funds’’) that are not part of the same 

‘‘group of investment companies,’’ 

within the meaning of section 

12(d)(1)(G)(ii) of the Act, as the Trusts, 

to acquire shares of the Funds in excess 

of the limits in section 12(d)(1)(A) of the 

Act, and to permit a Fund, any principal 

underwriter for a Fund, and any broker 

or dealer registered under the Securities 

Exchange Act of 1934 (‘‘Broker’’) to sell 

shares of a Fund to a Fund of Funds in 

excess of the limits of section 

12(d)(1)(B) of the Act. Applicants 

request that the relief apply to: (1) Each 

open-end management investment 

company or unit investment trust 

registered under the Act that currently 

or subsequently is part of the same 

‘‘group of investment companies,’’ 

within the meaning of section 

12(d)(1)(G)(ii) of the Act, as the Trusts 

and is advised or sponsored by the 

Advisor or any entity controlling, 

controlled by, or under common control 

with the Advisor (such open-end 

management investment companies are 

referred to as ‘‘Open-end Funds;’’ such 

unit investment trusts are referred to as 

‘‘UIT Funds;’’ and both Open-end Funds 

and UIT Funds are included in the term 

‘‘Funds’’); (2) each Fund of Funds that 

enters into a Participation Agreement 

(as defined below) with a Fund to 

purchase shares of the Funds; and (3) 

any principal underwriter to a Fund or 

Broker selling shares of a Fund.3

3. Each Investing Management 

Company will be advised by an 

investment adviser within the meaning 

of section 2(a)(20)(A) of the Act and 

registered as an investment advisor 

under the Advisers Act (‘‘Fund of Funds 

Adviser’’). A Fund of Funds Adviser 

may contract with an investment 

adviser which meets the definition of 

section 2(a)(20)(B) of the Act (a 

‘‘Subadviser’’). Any Subadviser will be 

registered as an investment adviser 

under the Advisers Act. Each Investing 

Trust will have a sponsor (‘‘Sponsor’’). 

Applicants represent that to ensure that 

Funds of Funds comply with the terms 

and conditions of the requested relief, a 

Fund of Funds must enter into a 

participation agreement between a 

Trust, on behalf of the relevant Funds, 

and the Fund of Funds (‘‘Participation 

Agreement’’) before investing in a Fund 

beyond the limits imposed by section 

12(d)(1)(A). The Participation 

Agreement will require the Fund of 

Funds to adhere to the terms and 

conditions of the requested order. The 

Participation Agreement will include an 

acknowledgment from the Fund of 

Funds that it may rely on the requested 

order only to invest in the Funds and 

not in any other registered investment 

company. 

4. Applicants state that the Funds will 

offer Funds of Funds simple and 

efficient investment vehicles to achieve 

their asset allocation or diversification 

objectives. Applicants state that the 

Funds also provide high quality, 

professional investment program 

alternatives to Funds of Funds that do 

not have sufficient assets to operate 

comparable funds. 

Applicants’ Legal Analysis 

A. Section 12(d)(1) 

1. Section 12(d)(1)(A) of the Act, in 

relevant part, prohibits a registered 

investment company from acquiring 

shares of an investment company if the 

securities represent more than 3% of the 

total outstanding voting stock of the 

acquired company, more than 5% of the 

total assets of the acquiring company, 

or, together with the securities of any 

other investment companies, more than 

10% of the total assets of the acquiring 

company. Section 12(d)(1)(B) of the Act 

prohibits a registered open-end 

investment company, its principal 

underwriter, and any Broker from 

selling the investment company’s shares 

to another investment company if the 

sale will cause the acquiring company 

to own more than 3% of the acquired 

company’s voting stock, or if the sale 

will cause more than 10% of the 

acquired company’s voting stock to be 

owned by investment companies 

generally. 

2. Section 12(d)(1)(J) of the Act 

provides that the Commission may 

exempt any person, security, or 

transaction, or any class or classes of 

persons, securities or transactions, from 

any provision of section 12(d)(1) if the 

exemption is consistent with the public 

interest and the protection of investors. 

Applicants seek an exemption under 

section 12(d)(1)(J) of the Act to permit 

Funds of Funds to acquire shares of the 

Funds in excess of the limits in section 

12(d)(1)(A) of the Act, and a Fund, any 

principal underwriter for a Fund and 

any Broker to sell shares of a Fund to 

a Fund of Funds in excess of the limits 

of section 12(d)(1)(B) of the Act. 

3. Applicants state that the proposed 

arrangement and conditions will 

adequately address the concerns 

underlying the applicable limits in 

sections 12(d)(1)(A) and (B) of the Act, 

which include concerns about undue 

influence by a fund of funds over 

underlying funds, excessive layering of 

fees, and overly complex fund 

structures. Accordingly, applicants 

believe that the requested exemption is 

consistent with the public interest and 

the protection of investors. 

4. Applicants believe that neither a 

Fund of Funds nor a Fund of Funds 

Affiliate would be able to exert undue 

9440 Federal Register / Vol. 74, No. 41 / Wednesday, March 4, 2009 / Notices 

4A ‘‘Fund of Funds Affiliate’’ is defined as a 

Fund of Funds Adviser, Subadviser, Sponsor, 

promoter, or a principal underwriter of a Fund of 

Funds, and any person controlling, controlled by, 

or under common control with any of those entities. 

A ‘‘Fund Affiliate’’ is defined as an investment 

adviser, sponsor, promoter, or principal 

underwriter of a Fund, and any person controlling, 

controlled by, or under common control with any 

of those entities. 

5Applicants represent that a Fund of Funds will 

represent in the Participation Agreement that no 

insurance company sponsoring a registered separate 

account will be permitted to invest in the Fund of 

Funds unless the insurance company has certified 

to the Fund of Funds that the aggregate of all fees 

and charges associated with each contract that 

invests in the Fund of Funds, including fees and 

charges at the separate account, Fund of Funds, and 

Fund levels, will be reasonable in relation to the 

services rendered, the expenses expected to be 

incurred, and the risks assumed by the insurance 

company. 

6Applicants acknowledge that receipt of 

compensation by (a) an affiliated person of a Fund 

of Funds, or an affiliated person of such person, for 

the purchase by the Fund of Funds of shares of a 

Fund or (b) an affiliated person of a Fund, or an 

affiliated person of such person, for the sale by the 

Fund of its shares to a Fund of Funds may be 

prohibited by section 17(e)(1) of the Act. The 

Participation Agreement also will include this 

acknowledgment. 

influence over the Funds.4 To limit the 

control that a Fund of Funds may have 

over a Fund, applicants propose a 

condition prohibiting the Fund of Funds 

Adviser or Sponsor, any person 

controlling, controlled by, or under 

common control with the Fund of 

Funds Adviser or Sponsor, and any 

investment company or issuer that 

would be an investment company but 

for section 3(c)(1) or 3(c)(7) of the Act 

that is advised or sponsored by the 

Fund of Funds Adviser or Sponsor, or 

any person controlling, controlled by, or 

under common control with the Fund of 

Funds Adviser or Sponsor (‘‘Fund of 

Funds Advisory Group’’) from 

controlling (individually or in the 

aggregate) a Fund within the meaning of 

section 2(a)(9) of the Act. The same 

prohibition would apply to each 

Subadviser, any person controlling, 

controlled by or under common control 

with the Subadviser, and any 

investment company or issuer that 

would be an investment company but 

for section 3(c)(1) or 3(c)(7) of the Act 

(or portion of such investment company 

or issuer) advised or sponsored by the 

Subadviser or any person controlling, 

controlled by or under common control 

with the Subadviser (‘‘Subadviser 

Group’’). Applicants propose other 

conditions to limit the potential for 

undue influence over the Funds, 

including that no Fund of Funds or 

Fund of Funds Affiliate (except to the 

extent it is acting in its capacity as an 

investment adviser to an Open-end 

Fund or sponsor to a UIT Fund) will 

cause a Fund to purchase a security in 

an offering of securities during the 

existence of an underwriting or selling 

syndicate of which a principal 

underwriter is an Underwriting Affiliate 

(‘‘Affiliated Underwriting’’). An 

‘‘Underwriting Affiliate’’ is a principal 

underwriter in any underwriting or 

selling syndicate that is an officer, 

director, member of an advisory board, 

Fund of Funds Adviser, Subadviser, 

Sponsor, or employee of the Fund of 

Funds, or a person of which any such 

officer, director, member of an advisory 

board, Fund of Funds Adviser, 

Subadviser, Sponsor or employee is an 

affiliated person; however any person 

whose relationship to a Fund is covered 

by section 10(f) of the Act is not an 

Underwriting Affiliate. 

5. Applicants do not believe that the 

proposed arrangement will involve 

excessive layering of fees. The board of 

directors or trustees of each Investing 

Management Company, including a 

majority of the directors or trustees who 

are not ‘‘interested persons’’ (within the 

meaning of section 2(a)(19) of the Act) 

(‘‘Disinterested Trustees’’), will find that 

the advisory fees charged under the 

advisory contract are based on services 

provided that will be in addition to, 

rather than duplicative of, the services 

provided under the advisory contract(s) 

of any Open-end Fund in which the 

Investing Management Company may 

invest. In addition, a Fund of Funds 

Adviser or trustee or Sponsor of a Fund 

of Funds will waive fees otherwise 

payable to it by the Fund of Funds in 

an amount at least equal to any 

compensation (including fees received 

pursuant to any plan adopted by an 

Open-end Fund under rule 12b–1 under 

the Act) received from a Fund by the 

Fund of Funds Adviser, trustee, or 

Sponsor, or an affiliated person of the 

Fund of Funds Adviser, trustee, or 

Sponsor, other than any advisory fees 

paid to the Fund of Funds Adviser, 

trustee, or Sponsor, or its affiliated 

person by an Open-end Fund, in 

connection with the investment by the 

Fund of Funds in the Fund. Applicants 

also state that with respect to registered 

separate accounts that invest in a Fund 

of Funds, no sales load will be charged 

at the Fund of Funds level or at the 

Fund level.5 Other sales charges and 

service fees, as defined in Rule 2830 of 

the NASD Conduct Rules (‘‘Rule 2830’’), 

if any, will only be charged at the Fund 

of Funds level or at the Fund level, not 

both. With respect to other investments 

in a Fund of Funds, any sales charges 

and/or service fees charged with respect 

to shares of the Fund of Funds will not 

exceed the limits applicable to a fund of 

funds as set forth in Rule 2830. 

6. Applicants submit that the 

proposed arrangement will not create an 

overly complex fund structure. 

Applicants propose condition 12 to 

ensure that the proposed structure will 

not result in unnecessary complexity. 

Applicants also note that a Fund 

reserves the right to reject any 

investment by a Fund of Funds. 

B. Section 17(a) 

1. Section 17(a) of the Act generally 

prohibits sales or purchases of securities 

between a registered investment 

company and any affiliated person of 

the company. Section 2(a)(3) of the Act 

defines an ‘‘affiliated person’’ of another 

person to include any person 5% or 

more of whose outstanding voting 

securities are directly or indirectly 

owned, controlled, or held with power 

to vote by the other person. Applicants 

seek relief from section 17(a) to permit 

a Fund that is an affiliated person, or an 

affiliated person of an affiliated person, 

of a Fund of Funds to sell its shares to 

and redeem its shares from a Fund of 

Funds.6

2. Section 17(b) of the Act authorizes 

the Commission to grant an order 

permitting a transaction otherwise 

prohibited by section 17(a) if it finds 

that (a) the terms of the proposed 

transaction are fair and reasonable and 

do not involve overreaching on the part 

of any person concerned, (b) the 

proposed transaction is consistent with 

the policies of each registered 

investment company involved, and (c) 

the proposed transaction is consistent 

with the general purposes of the Act. 

Section 6(c) of the Act permits the 

Commission to exempt any person or 

transactions from any provision of the 

Act if such 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. Applicants submit that the 

proposed arrangement satisfies the 

standards for relief under sections 17(b) 

and 6(c) of the Act. 

3. Applicants believe that any 

proposed transactions directly between 

Funds and a Fund of Funds will be 

consistent with the policies of each 

Fund and such Fund of Funds. The 

Participation Agreement will require 

any Fund of Funds that purchases 

shares from a Fund to represent that the 

purchase of shares from the Fund by a 

Fund of Funds will be accomplished in 

compliance with the investment 

restrictions of the Fund of Funds and 

will be consistent with the investment 

Federal Register / Vol. 74, No. 41 / Wednesday, March 4, 2009 / Notices 9441 

policies set forth in the Fund of Fund’s 

registration statement. 

4. Applicants state that the terms of 

the arrangement are fair and reasonable 

and do not involve overreaching. 

Applicants note that all shares of the 

Funds sold and redeemed by the Funds 

will be sold and redeemed at net asset 

value as required by rule 22c–1 under 

the Act. Applicants also state that the 

proposed arrangement is consistent with 

the policies and provisions of the Act. 

Applicants’ Conditions 

Applicants agree that any order 

granting the requested relief will be 

subject to the following conditions: 

1. The members of a Fund of Funds 

Advisory Group will not control 

(individually or in the aggregate) a Fund 

within the meaning of section 2(a)(9) of 

the Act. The members of a Subadviser 

Group will not control (individually or 

in the aggregate) a Fund within the 

meaning of section 2(a)(9) of the Act. If, 

as a result of a decrease in the 

outstanding voting securities of a Fund, 

the Fund of Funds Advisory Group or 

the Subadviser Group, each in the 

aggregate, becomes a holder of more 

than 25% of the outstanding voting 

securities of a Fund, it (except for any 

member of the Fund of Funds Advisory 

Group or Subadviser Group that is a 

separate account) will vote its shares of 

the Fund in the same proportion as the 

vote of all other holders of the Fund’s 

shares. This condition does not apply to 

the Subadviser Group with respect to a 

Fund for which the Subadviser or a 

person controlling, controlled by, or 

under common control with the 

Subadviser acts as the investment 

adviser within the meaning of section 

2(a)(20)(A) of the Act (in the case of an 

Open-end Fund) or as the sponsor (in 

the case of a UIT Fund). A registered 

separate account will seek voting 

instructions from its contract holders 

and will vote its shares in accordance 

with the instructions received and will 

vote those shares for which no 

instructions were received in the same 

proportion as the shares for which 

instructions were received. An 

unregistered separate account will 

either (a) vote its shares of the Fund in 

the same proportion as the vote of all 

other holders of the Fund’s shares, or (b) 

seek voting instructions from its 

contract holders and vote its shares in 

accordance with the instructions 

received and vote those shares for 

which no instructions were received in 

the same proportion as the shares for 

which instructions were received. 

2. No Fund of Funds or Fund of 

Funds Affiliate will cause any existing 

or potential investment by the Fund of 

Funds in shares of a Fund to influence 

the terms of any services or transactions 

between the Funds of Funds or a Fund 

of Funds Affiliate and the Fund or a 

Fund Affiliate. 

3. The board of directors or trustees of 

an Investing Management Company, 

including a majority of the Disinterested 

Trustees, will adopt procedures 

reasonably designed to assure that the 

Fund of Funds Adviser and any 

Subadviser are conducting the 

investment program of the Investing 

Management Company without taking 

into account any consideration received 

by the Investing Management Company 

or a Fund of Funds Affiliate from a 

Fund or a Fund Affiliate in connection 

with any services or transactions. 

4. Once an investment by a Fund of 

Funds in the securities of an Open-end 

Fund exceeds the limit in section 

12(d)(1)(A)(i) of the Act, the board of 

trustees of the Open-end Fund 

(‘‘Board’’), including a majority of the 

Disinterested Trustees, will determine 

that any consideration paid by the 

Open-end Fund to a Fund of Funds or 

a Fund of Funds Affiliate in connection 

with any services or transactions (a) Is 

fair and reasonable in relation to the 

nature and quality of the services and 

benefits received by the Open-end 

Fund, (b) is within the range of 

consideration that the Open-end Fund 

would be required to pay to another 

unaffiliated entity in connection with 

the same services or transactions, and 

(c) does not involve overreaching on the 

part of any person concerned. This 

condition does not apply with respect to 

any services or transactions between an 

Open-end Fund and its investment 

adviser(s), or any person controlling, 

controlled by, or under common control 

with such investment adviser(s). 

5. No Fund of Funds or Fund of 

Funds Affiliate (except to the extent it 

is acting in its capacity as an investment 

adviser to an Open-end Fund or sponsor 

to a UIT Fund) will cause a Fund to 

purchase a security in any Affiliated 

Underwriting. 

6. The Board of an Open-end Fund, 

including a majority of the Disinterested 

Trustees, will adopt procedures 

reasonably designed to monitor any 

purchases of securities by an Open-end 

Fund in an Affiliated Underwriting once 

an investment by a Fund of Funds in the 

securities of the Open-end Fund 

exceeds the limit in section 

12(d)(1)(A)(i) of the Act, including any 

purchases made directly from an 

Underwriting Affiliate. The Board of the 

Open-end Fund will review these 

purchases periodically, but no less 

frequently than annually, to determine 

whether the purchases were influenced 

by the investment by the Fund of Funds 

in the Open-end Fund. The Board of the 

Open-end Fund will consider, among 

other things, (a) whether the purchases 

were consistent with the investment 

objectives and policies of the Open-end 

Fund, (b) how the performance of 

securities purchased in an Affiliated 

Underwriting compares to the 

performance of comparable securities 

purchased during a comparable period 

of time in underwritings other than 

Affiliated Underwritings or to a 

benchmark such as a comparable market 

index, and (c) whether the amount of 

securities purchased by the Open-end 

Fund in Affiliated Underwritings and 

the amount purchased directly from an 

Underwriting Affiliate have changed 

significantly from prior years. The 

Board of the Open-end Fund will take 

any appropriate actions based on its 

review, including, if appropriate, the 

institution of procedures designed to 

assure that purchases of securities in 

Affiliated Underwritings are in the best 

interests of shareholders. 

7. Each Open-end Fund will maintain 

and preserve permanently in an easily 

accessible place a written copy of the 

procedures described in the preceding 

condition, and any modifications to 

such procedures, and will maintain and 

preserve for a period of not less than six 

years from the end of the fiscal year in 

which any purchase in an Affiliated 

Underwriting occurred, the first two 

years in an easily accessible place, a 

written record of each purchase of 

securities in Affiliated Underwritings 

once an investment by a Fund of Funds 

in the securities of an Open-end Fund 

exceeds the limit in section 

12(d)(1)(A)(i) of the Act, setting forth 

from whom the securities were 

acquired, the identity of the 

underwriting syndicate’s members, the 

terms of the purchase, and the 

information or materials upon which 

the determinations of the Board of the 

Open-end Fund were made. 

8. Before investing in a Fund in 

excess of the limits in section 

12(d)(1)(A), the Fund of Funds and the 

Fund will execute a Participation 

Agreement stating without limitation 

that their boards of directors or trustees 

and their investment advisers, or 

sponsors and trustees, as applicable, 

understand the terms and conditions of 

the order and agree to fulfill their 

responsibilities under the order. At the 

time of its investment in shares of an 

Open-end Fund in excess of the limit in 

section 12(d)(1)(A)(i), a Fund of Funds 

will notify the Open-end Fund of the 

investment. At such time, the Fund of 

Funds will also transmit to the Openend Fund a list of the names of each 

9442 Federal Register / Vol. 74, No. 41 / Wednesday, March 4, 2009 / Notices 

Fund of Funds Affiliate and 

Underwriting Affiliate. The Fund of 

Funds will notify the Open-end Fund of 

any changes to the list of the names as 

soon as reasonably practicable after a 

change occurs. The Fund and the Fund 

of Funds will maintain and preserve a 

copy of the order, the Participation 

Agreement and, in the case of an Openend Fund, the list with any updated 

information for the duration of the 

investment and for a period of not less 

than six years thereafter, the first two 

years in an easily accessible place. 

9. Before approving any advisory 

contract under section 15 of the Act, the 

board of directors or trustees of each 

Investing Management Company, 

including a majority of the Disinterested 

Trustees, will find that the advisory fees 

charged under such advisory contract 

are based on services provided that will 

be in addition to, rather than 

duplicative of, the services provided 

under the advisory contract(s) of any 

Open-end Fund in which the Investing 

Management Company may invest. 

These findings and their basis will be 

recorded fully in the minute books of 

the appropriate Investing Management 

Company. 

10. A Fund of Funds Adviser, or 

trustee, or Sponsor of a Fund of Funds, 

as applicable, will waive fees otherwise 

payable to it by the Fund of Funds in 

an amount at least equal to any 

compensation (including fees received 

from any plan adopted by an Open-end 

Fund under rule 12b–1 under the Act) 

received from a Fund by the Fund of 

Funds Adviser, trustee or Sponsor, or an 

affiliated person of the Fund of Funds 

Adviser, trustee or Sponsor, other than 

any advisory fees paid to the Fund of 

Funds Adviser, trustee or Sponsor, or its 

affiliated person, by an Open-end Fund, 

in connection with the investment by 

the Fund of Funds in the Fund. Any 

Subadviser will waive fees otherwise 

payable to the Subadviser, directly or 

indirectly, by the Investing Management 

Company in an amount at least equal to 

any compensation received from a Fund 

by the Subadviser, or an affiliated 

person of the Subadviser, other than any 

advisory fees paid to the Subadviser or 

its affiliated person by an Open-end 

Fund, in connection with the 

investment by the Investing 

Management Company in the Fund 

made at the direction of the Subadviser. 

In the event that the Subadviser waives 

fees, the benefit of the waiver will be 

passed through to the Investing 

Management Company. 

11. With respect to registered separate 

accounts that invest in a Fund of Funds, 

no sales load will be charged at the 

Fund of Funds level or at the Fund 

level. Other sales charges and service 

fees, as defined in Rule 2830, if any, 

will only be charged at the Fund of 

Funds level or at the Fund level, not 

both. With respect to other investments 

in a Fund of Funds, any sales charges 

and/or service fees charged with respect 

to shares of the Fund of Funds will not 

exceed the limits applicable to a fund of 

funds as set forth in Rule 2830. 

12. No Fund will acquire securities of 

any investment company or company 

relying on section 3(c)(1) or 3(c)(7) of 

the Act in excess of the limits contained 

in section 12(d)(1)(A) of the Act, except 

to the extent that the Fund (a) acquires 

such securities in compliance with 

section 12(d)(1)(E) of the Act; (b) 

receives securities of another 

investment company as a dividend or as 

a result of a plan of reorganization of a 

company (other than a plan devised for 

the purpose of evading section 12(d)(1) 

of the Act), or (c) acquires (or is deemed 

to have acquired) securities of another 

investment company pursuant to 

exemptive relief from the Commission 

permitting such Fund to (i) acquire 

securities of one or more investment 

companies for short-term cash 

management purposes, or (ii) engage in 

interfund borrowing and lending 

transactions. 

For the Commission, by the Division of 

Investment Management, pursuant to 

delegated authority. 

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–4604 Filed 3–3–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Investment Company Act Release No. 

28638; 812–13441] 

IndexIQ ETF Trust, et al.; Notice of 

Application 

February 27, 2009. 

AGENCY: Securities and Exchange 

Commission (‘‘Commission’’). 

ACTION: Notice of an application for an 

order under Section 6(c) of the 

Investment Company Act of 1940 (the 

‘‘Act’’) for an exemption from Sections 

2(a)(32), 5(a)(1), 22(d), and 22(e) of the 

Act and rule 22c–1 under the Act; and 

under Sections 6(c) and 17(b) of the Act 

for an exemption from Sections 17(a)(1) 

and (a)(2) of the Act; and under Section 

12(d)(1)(J) for an exemption from 

Sections 12(d)(1)(A) and (B) of the Act. 

APPLICANTS: IndexIQ ETF Trust 

(‘‘Trust’’), IndexIQ Advisors LLC 

(‘‘Advisor’’) and ALPS Distributors, Inc. 

(‘‘Distributor’’). 

SUMMARY OF APPLICATION: Applicants 

request an order that permits: (a) Series 

of certain open-end management 

investment companies to issue shares 

(‘‘Shares’’) redeemable in large 

aggregations (‘‘Creation Units’’); (b) 

secondary market transactions in Shares 

to occur at negotiated market prices; (c) 

certain series to pay redemption 

proceeds, under certain circumstances, 

more than seven days after the tender of 

Shares for redemption; (d) certain 

affiliated persons of the series to deposit 

securities into, and receive securities 

from, the series in connection with the 

purchase and redemption of Creation 

Units; and (e) certain registered 

management investment companies and 

unit investment trusts outside of the 

same group of investment companies as 

the series to acquire Shares of certain 

series. 

FILING DATES: The application was filed 

on October 23, 2007 and amended on 

August 1, 2008, November 19, 2008, 

January 28, 2009 and February 12, 2009. 

Applicants have agreed to file an 

amendment during the notice period, 

the substance of which is reflected in 

this notice. 

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 March 19, 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, U.S. Securities 

and Exchange Commission, 100 F 

Street, NE., Washington, DC 20549– 

1090; Applicants: Gregory Bassuk, 

IndexIQ ETF Trust and IndexIQ 

Advisors LLC, 800 Westchester Avenue, 

Suite N–611, Rye Brook, NY 10573; 

ALPS Distributors, Inc., c/o Thomas A. 

Carter, 1290 Broadway, Suite 1100, 

Denver, CO 80203. 

FOR FURTHER INFORMATION CONTACT: Jean 

E. Minarick, Senior Counsel at (202) 

551–6811 or Mary Kay Frech, Branch 

Chief, at (202) 551–6821 (Division of 

Investment Management, Office of 

Investment Company Regulation).