21232 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices

source of profit for NYLIAC which will

be added to its surplus and may be used

for, among other things, the payment of

distribution expenses.

15. The mortality risk borne by

NYLIAC arises from its obligation to

make annuity payments (determined in

accordance with the annuity tables and

other provisions contained in the

relevant Policy), where a life annuity is

selected, regardless of how long an

Annuitant may live. The mortality risk

under the Policy is the risk that, upon

selection of an annuity payment option

which has life contingencies,

Annuitants will live longer than

NYLIAC’s actuarial projections indicate,

resulting in higher than expected

income payments. NYLIAC is also

assuming a mortality risk as a result of

its promise to pay a minimum death

benefit under the Policies.

16. The expense risk borne by

NYLIAC under the Policy is the risk that

the charges for administrative expenses,

which are guaranteed for the life of the

Policies, may be insufficient to cover the

actual costs of issuing and

administering the Policies.

Applicants’ Legal Analysis

1. Applicants request an order under

Section 6(c) granting exemptions from

sections 26(a)(2)(C) and 27(c)(2) of the

1940 Act to permit the deduction from

the assets of the Separate Accounts and

the Future Accounts of mortality and

expense risk charges under the Policies

or Other Policies, as appropriate.

2. Section 6(c) of the 1940 Act

authorizes the Commission, by order

upon application, to conditionally or

unconditionally grant an exemption

from any provision, rule or regulation of

the 1940 Act 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 1940 Act.

3. Sections 26(a)(2)(C) and 27(c)(2) of

the 1940 Act, in relevant part, prohibit

a registered unit investment trust, its

depositor or principal underwriter, from

selling periodic payment plan

certificates unless the proceeds of all

payments, other than sales loads, are

deposited with a qualified bank and

held under arrangements which prohibit

any payment to the depositor or

principal underwriter except a

reasonable fee, as the Commission may

prescribe, for performing bookkeeping

and other administrative duties

normally performed by the bank itself.

4. Applicants submit that their

request for an order that applies to

Other Policies offered by the Separate

Accounts and by Future Accounts is

appropriate in the public interest

because it would promote

competitiveness in the variable annuity

policy market by eliminating the need

for NYLIAC to file redundant exemptive

applications, thereby reducing its

administrative expenses and

maximizing the efficient use of its

resources. Investors would not receive

any benefit or additional protection by

requiring NYLIAC to repeatedly seek

exemptive relief with respect to the

same issues addressed in this

Application.

5. Applicants represent that the

mortality and expense risk charges

under the NVA Policies and MFA

Policies are within the range of industry

practice for comparable variable annuity

contracts. This representation is based

upon Applicants’ analysis of publicly

available information about similar

industry products, taking into

consideration such factors as current

charge levels, the manner in which

charges are imposed, the presence of

charge levels or annuity rate guarantees

and the markets in which the Policies

will be offered. Applicants state that

NYLIAC will maintain at its

headquarters and make available to the

Commission, upon request, a

memorandum outlining the

methodology underlying this

representation.

Similarly, prior to making available

any Other Policies, Applicants will

represent that the mortality and expense

risk charges under any such Other

Policies will be within the range of

industry practice for comparable

variable annuity contracts. NYLIAC will

maintain at its headquarters and make

available to the Commission, upon

request, a memorandum outlining the

methodology underlying such

representation.

6. Applicants acknowledge that, if a

profit is realized from the mortality and

expense risk charge under the Policies,

all or a portion of such profit may be

available to pay distribution expenses

not reimbursed by the CDSC. NYLIAC

has concluded that there is a reasonable

likelihood that the proposed

distribution financing arrangements will

benefit the Separate Accounts and the

Policy Owners. NYLIAC will keep at its

headquarters and make available to the

Commission, upon request, a

memorandum setting forth the basis for

this representation. In addition,

NYLIAC will keep at its headquarters

and make available to the Commission,

upon request, a memorandum setting

forth the basis for the same

representation with respect to Other

Policies offered by the Separate

Accounts and by Future Accounts.

8. Applicants represent that the

Separate Account and any Future

Account will invest only in underlying

funds that have undertaken to have a

board of directors/trustees, a majority of

whom are not interested persons of any

such fund, as defined in the 1940 Act,

formulate and approve any plan under

Rule 12b–1 under the 1940 Act to

finance distribution expenses.

Conclusion

Applicants assert that for the reasons

and upon the facts set forth above, the

requested exemptions from sections

26(a)(2)(C) and 27(c)(2) of the 1940 Act

to deduct the mortality and expense risk

charge under the Policies, or under

Other Policies, offered by the Separate

Account or by Future Accounts are

necessary and appropriate in the public

interest and consistent with the

protection of investors and the policies

and provisions of the 1940 Act.

For the Commission, by the Division of

Investment Management, pursuant to

delegated authority.

Margaret H. McFarland,

Deputy Secretary.

[FR Doc. 95–10608 Filed 4–28–95; 8:45 am]

BILLING CODE 8010–01–M

DEPARTMENT OF TRANSPORTATION

Aviation Proceedings; Agreements

Filed During the Week Ended April 21,

1995

The following Agreements were filed

with the Department of Transportation

under the provisions of 49 U.S.C. 412

and 414. Answers may be filed within

21 days of date of filing.

Docket Number: 50297

Date filed: April 18, 1995.

Parties: Members of the International Air

Transport Association.

Subject: Request For Interim Approval of

Amendment To The Provisions For The

Conduct Of IATA Traffic Conferences.

The amendment was adopted by the IATA

Executive Committee at its 159th meeting.

The amendment involves Article VI,

Paragraph 9 of the Provisions and reads as

follows (new text underlined):

One-third of the representatives of the

voting Members of a Tariff Conference, and

one-fifth of the representatives of the voting

Members of a Services Conference or Agency

Conference which have nominated an

Accredited Representative to such

Conference, or their respective designated

alternates acting in their place and stead,

shall constitute the quorum at any meeting of

the Traffic Conference concerned: (* * *)

(remainder of paragraph 9 unchanged)

Docket Number: 50298

Date filed: April 18, 1995.
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices 21233

Parties: Members of the International Air

Transport Association.

Subject: TC2/TC12 Mail Vote 739,

Rescission of Fare Increase from Sudan.

Proposed Effective Date: May 1, 1995.

Paulette V. Twine,

Chief, Documentary Services Division.

[FR Doc. 95–10573 Filed 4–28–95; 8:45 am]

BILLING CODE 4910–62–P

Federal Railroad Administration

Petition for Exemption or Waiver of

Compliance

In accordance with Title 49 CFR 211.9

and 211.41, notice is hereby given that

the Federal Railroad Administration

(FRA) has received requests for

exemptions from or waivers of

compliance with a requirement of its

safety standards. The individual

petitions are described below, including

the party seeking relief, the regulatory

provisions involved, and the nature of

the relief being requested.

Interested parties are invited to

participate in these proceedings by

submitting written views, data, or

comments. FRA does not anticipate

scheduling a public hearing in

connection with these proceedings since

the facts do not appear to warrant a

hearing. If any interested party desires

an opportunity for oral comment, they

should notify FRA, in writing, before

the end of the comment period and

specify the basis for their request.

All communications concerning these

proceedings should identify the

appropriate docket number (e.g., Waiver

Petition Docket Number RSOP–95–1)

and must be submitted in triplicate to

the Docket Clerk, Office of Chief

Counsel, FRA, Nassif Building, 400

Seventh Street SW., Washington, D.C.

20590. Communications received within

45 days of the date of publication of this

notice, will be considered by FRA

before final action is taken. Comments

received after that date will be

considered as far as practicable. All

written communications concerning

these proceedings are available for

examination during regular business

hours (9:00 a.m.–5:00 p.m.) in Room

8201, Nassif Building, 400 Seventh

Street SW., Washington, D.C. 20590.

The individual petitions seeking an

exemption or waiver of compliance are

as follows:

American President Lines, Limited and

APL Land Transport Services,

Incorporated (APL) (Waiver Petition

Docket Number RSOP–95–1)

The American President Lines,

Limited and APL seek a permanent

waiver of compliance with certain

provisions of the Railroad Operating

Practices regulation (Title 49 CFR Part

218) for derail and blue signal

requirements. APL is seeking relief from

the requirements of § 218.29(c)(1) which

states: ‘‘(c) Except as provided in

paragraphs (a) and (b) of this section,

when workers are on, under, or between

rolling equipment on any track, other

than main track: (1) A derail capable of

restricting access to that portion of the

track on which such equipment is

located, will fulfill the requirements of

a manually operated switch when

positioned no less than 150 feet from

the end [of] such equipment * * *’’

A new container port facility and rail

yard, which will be operated by an APL

subsidiary, are being designed and built

by the Port of Seattle. The new facility

is designed to load and unload

intermodal trains and is expected to be

occupied by the last quarter of 1996.

The yard will have the capacity to store

up to 56 stack train cars with each such

car being a maximum of 337 feet long.

There will be 6 parallel spur tracks

entering the yard from the south end

with a single run-around track to the

west of the working tracks. The 6 spurs

are arranged in sets of 2 parallel tracks

which will be serviced by gantry cranes

or top-picks for loading and unloading.

The 6 spurs rejoin at the north end to

service a single spur which runs north

to a ‘‘dead end.’’ In the center of the

yard is a 70-foot wide crossing aisle that

divides each spur. On each side of the

aisle, APL plans to load and unload 3

to 5 stack cars on each of the 6 tracks.

The 6 tracks will each be about 3,100

feet in length, and the yard will be

approximately 3,200 feet in length by

about 300 feet in width. APL intends to

load or unload trains on all 6 spurs

simultaneously. To protect its workmen,

APL plans to install blue lights and

derailers 5 feet beyond the edge on both

sides of the aisle. The 5-foot area

between the edge of the aisle and the

derailer and blue light signal will be a

surface that will immediately dampen

the progress of any car that is derailed,

so that the car will stop moving before

the face of the coupler reaches the aisle.

The blue light, derail and red light will

all be remotely and automatically

controlled from a tower that is within

1,500 feet of the aisle and will have a

continuous uninterrupted view of the

yard. There will also be a blue light

signal and derail across the aisle, 80 feet

from the other blue light and derail,

which would, APL claims, in essence

provide dual protection for the

workmen.

The facility will load and unload

ships and intermodal unit trains. In a

typical operation, a loaded train will

enter the yard from the south, pulling

enough cars to fill the first track. The

speed limit in the yard will be 5 mph.

The locomotive will pull these cars onto

the first track, where a cut will be made

just before the aisle, and those cars to be

unloaded on the southeast side of the

aisle will be set out. The locomotive

will then pull the rest of the cars onto

the track north of the aisle where they

will be set out. The locomotive will then

exit the first track, proceed south on the

run-around track to the west of the yard

and pickup another cut of cars to fill the

second track. This will continue until

the incoming train is spotted or all six

tracks are filled. Excess cars can be

spotted in a storage yard west of and

adjacent to the main yard. During the

process, once each cut of cars is set out

on the appropriate track, the blue lights

and derails will be set.

At that point, top lifting type

container handling equipment will be

used to unload the railroad cars on any

given spur. Tractors will move the

trailers or containers either to a storage

area, or directly to ships that are berthed

at the facility. These tractors will use

the aisle as the means of access to and

from the yard with both chassis and

containers. A similar process will be

followed when loading unit trains from

a ship or the container storage yard.

APL requests waiver of the 150-foot

requirement for the blue lights and

derail devices to be used in the center

aisle in the yard. Each group of

workmen will be protected by blue light

signals 80 feet apart across the aisle.

Each group of workmen will also be

protected by two derail devices. The

first will be within 5 feet of the coupling

face, and the other will be 80 feet from

the first derail device, across the aisle.

Workmen will not begin working to load

or unload the cars on any given spur

until the cars have come to a complete

stop and are protected as set out in this

waiver request. They will be protected

by two blue light signals and by two

derail devices.

APL states that it ‘‘is working with the

Port in the process of designing the

yard. One important facet of this design

is that workmen be able to work in close

proximity to the aisle to increase

efficiency. As indicated in the Notice of

Proposed Rulemaking, when certain

criteria are present, a railroad may

safely use different approaches to afford

blue signal protection.’’ APL states they

will meet those criteria. ‘‘First, slow

speeds are involved since there is a 5

mph speed limit in the yard. Next,

control over the movement of the

equipment will be placed in the hands

of individuals directly responsible for

the people who need to be protected. In