Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Notices 22271

1The Equitable Life Assurance Society of the

United States, Investment Company Act Release

Nos. 23774 (Apr. 7, 1999) (File No. 812–11388) and

23889 (July 2, 1999) (File No. 812–11662).

2The Equitable Life Assurance Society of the

United States, Investment Company Act Release

No. 23822 (File No. 812–11388).

3The Equitable Life Assurance Society of the

United States, Investment Company Act Release

No. 23924 (File No. 812–11662).

4Pursuant to Rule 0–4 under the Act, Applicants

incorporate by reference the statement of facts set

out in the Prior Applications to the extent necessary

to support the Application. Applicants represent

that except as described herein all of the facts

asserted in the Prior Applications remain true and

accurate in all material aspects to the extent that

such facts are relevant to any relief on which

Applicants continue to rely.

SUMMARY: In accordance with the

Paperwork Reduction Act of 1995 (Pub.

L. 104–13, May 22, 1995), this notice

announces that the Office of Personnel

Management (OPM) has submitted to

the Office of Management and Budget a

request for review of a revised

information collection. RI 38–115,

Representative Payee Survey, is used to

collect information about how the

benefits paid to a representative payee

have been used or conserved for the

benefit of the incompetent annuitant.

Approximately 4,067 RI 38–115 forms

will be completed annually. The form

takes approximately 20 minutes to

complete. The annual burden is 1,356

hours.

For copies of this proposal, contact

Mary Beth Smith-Toomey on (202) 606–

8358, or E-mail to mbtoomey@opm.gov.

DATES: Comments on this proposal

should be received on or before June 2,

2001.

ADDRESSES: Send or deliver comments

to—

Ronald W. Melton, Chief, Operations

Support Division, Retirement and

Insurance Service, U.S. Office of

Personnel Management, 1900 E Street,

NW., Room 3349A, Washington, DC

20415

and

Joseph Lackey, OPM Desk Officer,

Office of Information and Regulatory

Affairs, Office of Management and

Budget, New Executive Office

Building, NW., Room 10235,

Washington, DC 20503.

FOR INFORMATION REGARDING

ADMINISTRATIVE COORDINATION CONTACT:

Donna G. Lease, Team Leader, Forms

Analysis and Design, Budget and

Administrative Services Division, (202)

606–0623.

Office of Personnel Management.

Steven R. Cohen,

Acting Director.

[FR Doc. 01–11083 Filed 5–2–01; 8:45 am]

BILLING CODE 6325–50–U

SECURITIES AND EXCHANGE

COMMISSION

[Release No. IC–24963; File No. 812–12392]

The Equitable Life Assurance Society

of the United States, et al.

April 26, 2001.

AGENCY: Securities and Exchange

Commission (‘‘SEC’’ or ‘‘Commission’’).

ACTION: Notice of application for an

amended order under Section 6(c) of the

Investment Company Act of 1940, as

amended (‘‘Act’’) granting exemptions

from the provisions of Sections 2(a)(32),

22(c) and 27(i)(2)(A) of the Act and Rule

22c–1 thereunder.

Summary of Application: Applicants

seek an order to amend an Existing

Order (describing below) to permit,

under specified circumstances, the

recapture of certain Credits applied to

contributions made under ‘‘Contracts’’

and ‘‘Future Contracts’’ as defined in he

applications for the Existing Order

(‘‘Prior Applications’’).1 Applicants also

request that the order being sought

extend to ‘‘Equitable Broker-Dealers,’’

defined in the Prior Applications.

Applicants: The Equitable Life

Assurance Society of the United States

(‘‘Equitable Life’’), The Equitable of

Colorado, Inc. (‘‘EOC,’’ and together

with Equitable Life, ‘‘Equitable’’),

Separate Account No. 45 of Equitable

Life (‘‘SA 45’’), Separate Account No. 49

of Equitable Life (‘‘SA 49’’), Separate

Account VA of EOC (‘‘SA VA’’ and

together with SA 45 and SA 49, the

‘‘Accounts’’), any other separate

accounts of Equitable Life or EOC

(collectively, ‘‘Future Accounts’’) that

support in the future variable annuity

contracts and certificates that are

substantially similar in all material

respects to the contracts described

herein, AXA Advisors, LLC, and

Equitable Distributors, Inc. (‘‘EDI’’)

(collectively, ‘‘Applicants’’).

Filing Date: The application was filed

on January 2, 2001 and amended on

April 24, 2001.

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 Secretary of

the Commission 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 May 18, 2001, and should be

accompanied by proof of service on

Applicants in the form of an affidavit or,

for lawyers, a certificate of service.

hearing request should state the nature

of the requester’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 Secretary of the

Commission.

ADDRESSES: Secretary, SEC, 450 5th

Street, NW., Washington, DC 20549–

0609. Applicants, c/o The Equitable Life

Assurance Society of the United States,

1290 Avenue of the Americas, New

York, New York 10104, Attn: Dodi Kent,

Esq.

FOR FURTHER INFORMATION CONTACT:

Mark Cowan, Senior Counsel, or Keith

Carpenter, Branch Chief, Office of

Insurance Products, Division of

Investment Management, at (202) 942–

0670.

SUPPLEMENTARY INFORMATION: The

following is a summary of the

application. The complete application

may be obtained for a fee from the SEC’s

Public Reference Branch, 450 Fifth

Street, NW., Washington, DC 20549 (tel.

(202) 942–8090).

Applicant’s Representations

1. On May 3, 1999, the Commission

issued an order (‘‘Prior Order’’) 2

exempting certain transactions of

Applicants from the provisions of

Sections 2(a)(32), 22(c) and 27(i)(2)(A)

of the Act and Rule 22c–1 thereunder.

The Prior Order specifically permits the

recapture, under specified

circumstances, of certain 3% Credits

applied to contributions made under

Contracts or Future Contracts. On July

28, 1999, the Commission issued an

order of exemption amending the Prior

Order 3 (together with the Prior Order,

the ‘‘Existing Order’’) to permit the

recapture of Credits of up to 5% (‘‘5%

Credits’’), under the same specified

circumstances.4

2. Equitable now desires to offer and

recapture Credits of up to 6% of

contributions (‘‘6% Credits’’) under the

Contracts or Future Contracts, under the

same and certain additional

circumstances described below.

Equitable will apply a Credit to the

account of a Contract owner whenever

the owner makes a contribution. The

amount of the Credit will equal a

percentage (‘‘Credit Rate’’) of the

contribution. For contributions received

during the first Contract Year (as

defined in the Contract prospectus), the

applicable Credit Rate will be based on

the Credit schedule then in effect and

the total net amount of contributions

received to date under a Contract. The

Credit Rate applicable to contributions

made after the first Contract Year will be

22272 Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Notices

5The Letter of Intent will be in the form of an

acknowledgment in a delineated section of the

application for the Contracts. The initial

contribution must be at least 50% of the Expected

First Year Contributions for the Letter of Intent

Credit Rate to apply.

the Credit Rate applicable to ‘‘Net First

Year Contributions’’ received during the

first Contract Year. ‘‘Net Year

Contributions’’ equal total first

contributions (‘‘Total First Year

Contributions’’) less any withdrawals of

contributions (including withdrawal

charges) made during the first Contract

Year.

3. Equitable currently proposes to use

the following Credit schedule for

contributions made under the Contract:

Contributions* Credit rate

(as a

percentage of

contribution) At least But lessthan

Minimum .... $250,000 .... 4.0

$250,000 .... $1,000,000 5.0

$1,000,000 unlimited** .. 6.0

* The Credit Rate applicable depend on total

net contributions received to date, Expected

First Year Contributions, or Net First Year

Contributions, as described below.

** Maximum contribution limitations may

apply.

4. If Equitable receives more than one

contribution during the first Contract

Year and a higher Credit Rate applies to

the later contribution(s) based on the

total amount of net contributions to date

(i.e., the total net contributions surpass

a breakpoint), Equitable will apply the

higher Credit Rate to that contribution,

as well as any prior or subsequent

contributions made in the first Contract

Year. Equitable will apply any

additional Credit amounts resulting

from such adjustments as of the date it

receives the later contribution(s).

5. If a Contract owner executes a letter

of intent (‘‘Letter of Intent ’’) pursuant

to which the owner agrees to make a

certain amount of contributions in the

first Contract Year (‘‘Expected First Year

Contributions’’),5 Equitable will apply a

Credit amount to each contribution

made during the first Contract Year

using the Credit Rate applicable to the

Expected First Year Contributions

(‘‘Letter of Intent Credit Rate’’).

Equitable will apply Credits at the Letter

of Intent Credit Rate when it receives

each contribution. For any

contribution(s) that results in the total

net contributions to date exceeding the

Expected First Year Contributions, such

that a higher Credit Rate would apply,

Equitable will apply the higher Credit

Rate to that contribution, as well as any

prior or subsequent contribution(s)

made in the first Contract Year.

6. In the future, Equitable may apply

Credits for contributions under the

Contracts using the same Credit

schedule or a different Credit schedule

containing higher breakpoints.

7. Equitable will recapture Credits

applied to contributions made under

Contracts and Future Contracts under

the same circumstances permitted by

the Existing Order. In addition, on the

first anniversary of the Contract

(‘‘Contract Anniversary’’), Equitable will

recapture any ‘‘Excess Credits’’ applied

during the first Contract Year, as

discussed below.

8. Excess Credits will exist when a

Contract owner’s Net First Year

Contributions are lower than Total First

Year Contributions. In such cases,

Equitable will recapture an Excess

Credit amount equal to the difference

between the Credits that were actually

applied and the Credits that would have

been applied based on Net First Year

Contributions.

Example.

• Assume an initial contribution of

$250,000. A Credit of $12,500 (5% of

$250,000) would be applied to the

Contract. If the Contract owner

withdraws $100,000 during the first

Contract Year, his or her Net First Year

Contributions would be $145,00

($250,000–$100,000–$5,000 withdrawal

charge ($100,000–15% free withdrawal

× 8%)). The applicable Credit Rate

based on Net First Year Contributions is

4%. At the end of the first Contract

Year, Equitable would recapture $6,700

(5% of $105,000 plus 1% of $145,000).

9. Excess Credits also will exist when

a Contract owner fails to fulfill the

conditions of a Letter of Intent, and as

a result the Credits applied to the

Contract exceed the Credits that would

have applied to actual contributions

made had the Contract owner not

executed a Letter of Intent. For Contract

owners who fail to fulfill a Letter of

Intent, Equitable will recapture an

amount equal to the difference between

the Credits that were actually applied

and the Credits that would have been

applied based on Net First Year

Contributions.

Example.

• Assume an initial contribution of

$150,000 pursuant to a Letter of Intent

under which the Contract owner has

agreed to make contributions totaling

$250,000 during the first Contract Year.

A Credit of $7,500 (5% of $150,000)

would apply to the Contract. If the

Contract owner makes no more

contributions during the first Contract

Year (and thus does not fulfill the terms

of the Letter of Intent), then at the end

of the first Contract Year, Equitable

would recapture $1,500 (1% of

$150,000).

10. The Contracts and Future

Contracts will be substantially similar in

all material respects to the Contracts

covered by the Existing Order except

that: (a) Equitable will apply and

recapture Credits as described above,

and (b) a sorter withdrawal charge

schedule will apply. Specifically, the

Contracts and Future Contracts will

have a withdrawal charge schedule that

declines from 8% in years one and two,

to 0% in year nine and thereafter (rather

than year 10 and thereafter, as it

currently does).

11. Applicants submit that their

request for an order that applies to the

Accounts or any Future Account, in

connection with the issuance of

Contracts and Future Contracts that are

substantially similar in all material

respects to the Contracts described

herein and underwritten or distributed

by AXA Advisors, LLC, Equitable

Distributors, Inc., or Equitable BrokerDealers, is appropriate in the public

interest for the same reasons as those

given in support of the Existing Order.

Applicant’s Legal Analysis

1. Section 6(c) of the Act authorizes

the Commission to exempt any person,

security or transaction, or any class or

classes of persons, securities or

transactions from the provision of the

Act and the rules promulgated

thereunder if and to the extent that 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.

2. Applicants request that the

Commission, pursuant to Section 6(c) of

the Act, amend the Existing Order to

grant exemptions from the provisions of

Sections 2(a)(32), 22(c) and 27(i)(2)(A)

of the Act and Rule 22c–1 thereunder,

to the extent necessary to permit: (a) the

racapture of 6% Credits under the same

circumstances covered by the Existing

Order, and (b) the recapture of Excess

Credits in the manner described above.

3. Applicants submit that the

recapture of Credits will not raise

concerns under Sections 2(a)(32), 22(c)

and 27(i)(2)(A) of the Act, and Rule 22c–

1 thereunder the same reasons given in

support of the Existing Order. First, the

6% Credits will be recapturable under

the same circumstances and on the same

basis as the 5% Credits described in the

Prior Applications, the only difference

being the higher percentage amount. In

addition, Applicants submit that when

Equitable recaptures any Excess Credit,

it is also simply retrieving its own

assets, because a Contract owner’s

Federal Register / Vol. 66, No. 86 / Thursday, May 3, 2001 / Notices 22273

interest in any Excess Credit allocated to

a Contract within the first Contract Year

is not vested. Rather, Equitable retains

the right to, and interest in, the Excess

Credit, although not any earnings

attributable to the Excess Credit.

4. Applicants state that because a

Contract owner’s interest in any

recapturable Excess Credit is not vested,

the owner will not be deprived of a

proportionate share of the applicable

Account’s assets, i.e., a share of the

applicable Account’s assets

proportionate to the Contract owner’s

annuity account value (taking into

account the investment experience

attributable to any Excess Credit). The

amounts recaptured will never exceed

the Credits (or any Excess Credit)

provided by Equitable from its own

general account assets, and Equitable

will not recapture any gain attributable

to the Credit (or any Excess Credit).

5. Furthermore, Applicants submit

that permitting a Contract owner who

withdraws contributions, or who fails to

fulfill his or here Letter of Intent

obligations to retain any Excess Credit,

would be patently unfair and would

deny the Applicants a reasonable

measure of protection against ‘‘antiselection.’’ The risk here is that rather

than investing contributions over a

number of years, a Contract owner could

make an initial contribution, receive

Credits, then later, during the first

Contract Year, withdraw monies

(perhaps by taking advantage of the 15%

free withdrawal feature), thereby

enabling the Contract owner to retain

Credit amounts that otherwise would

not have been applied. Similarly, a

Contract owner could execute a Letter of

Intent with no intention of fulfilling it,

in order to obtain higher Credit

amounts. Like the recapture of Credits

permitted by the Existing Order, the

amounts recaptured will equal the

Excess Credits provided by Equitable

from its own general account assets, and

any gain associated with the Credit will

remain part of the Contract owner’s

Contract value.

6. For the foregoing reasons,

Applicants submit that the provisions

for recapture of any Credit or Excess

Credit under the Contracts does not

violate Section 2(a)(32), 22(c), and

27(i)(2)(A) of the Act, and Rule 22c–1

thereunder, and that the requested relief

therefrom is consistent with the

exemptive relief provided under the

Existing Order.

7. Applicants submit that their

request for an order that applies to the

Accounts or any Future Account, in

connection with the issuance of

Contracts and Future Contracts that are

substantially similar in all material

respects to the Contracts described

herein and underwritten or distributed

by AXA Advisors, LLC, Equitable

Distributors, Inc., or Equitable BrokerDealers, is appropriate in the public

interest for the same reasons as those

given in support of the Existing Order.

Conclusion

Applicants submit, based on the

grounds summarized above, that their

exemptive request meets the standards

set out in Section 6(c) of the Act,

namely, that the exemptions requested

are 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, and that,

therefore, the Commission should grant

the requested order.

For the Commission, by the Division of

Investment Management, pursuant to

delegated authority.

Margaret H. McFarland,

Deputy Secretary.

[FR Doc. 01–11048 Filed 5–2–01; 8:45 am]

BILLING CODE 8010–01–M

SECURITIES AND EXCHANGE

COMMISSION

[Release No. IC–24964]

Notice of Applications for

Deregistration Under Section 8(f) of the

Investment Company Act of 1940

April 27, 2001.

The following is a notice of

applications for deregistration under

section 8(f) of the Investment Company

Act of 1940 for the month of April,

2001. A copy of each application may be

obtained for a fee at the SEC’s Public

Reference Branch, 450 Fifty St., NW.,

Washington, DC 20549–0102 (tel. 202–

942–8090). An order granting each

application will be issued unless the

SEC orders a hearing. Interested persons

may request a hearing on any

application by writing to the SEC’s

Secretary at the address below and

serving the relevant applicant with a

copy of the request, personally or by

mail. Hearing requests should be

received by the SEC by 5:30 p.m. on

May 22, 2001, and should be

accompanied by proof of service on the

applicant, 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 Secretary, SEC, 450 Fifth

Street, NW., Washington, DC 20549–

0609. For Further Information Contact:

Diane L. Titus, at (202) 942–0564, SEC,

Division of Investment Management,

Office of Investment Company

Regulation, 450 Fifth Street, NW.,

Washington, DC 20549–0506.

Firstmark Partners Contrarian Value

Fund [File No. 811–9109]

Summary: Applicant seeks an order

declaring that it has ceased to be an

investment company. On December 21,

2000, applicant made a liquidating

distribution to its shareholders based on

net asset value. Expenses of

approximately $3,800 incurred in

connection with the liquidation were

paid by applicant’s investment adviser,

Firststock Financial Services, Inc.

Filing Dates: The application was

filed on March 7, 2001, and amended on

April 18, 2001.

Applicant’s Address: 5212

Underwood Ave., Omaha, NE 68132.

Circle Income Shares, Inc.

[File No. 811–2378]

Summary: Applicant, a closed-end

investment company, seeks an order

declaring that it has ceased to be an

investment company. On January 22,

2001, applicant transferred its assets to

One Group Mutual Funds based on net

asset value. Expenses of $123,169 were

incurred in connection with the

reorganization. Applicant and the

acquiring fund each were responsible

for their own reorganizational expenses.

Bank One Investment Advisors

Corporation, the acquiring fund’s

investment adviser, assumed the costs

of certain expenses, including proxy

solicitation and legal expenses.

Filing Date: The application was filed

on April 6, 2001.

Applicant’s Address: PO Box 77004,

Indianapolis, IN 46277–7004.

Imperial Special Investments, Inc.

[File No. 811–9919]

Summary: Applicant, a closed-end

investment company, seeks an order

declaring that it has ceased to be an

investment company. On March 26,

2001, applicant made a liquidating

distribution to its shareholders based on

net asset value. Expenses of $16,600

incurred in connection with the

liquidation were paid by applicant.

Filing Date: The application was filed

on April 4, 2001.

Applicant’s Address: 9920 S. La

Cienega Blvd., Suite 636, Inglewood, CA

90301.

Bearguard Funds, Inc.

[File No. 811–9291]

Summary: Applicant seeks an order

declaring that it has ceased to be an