[Federal Register Volume 60, Number 45 (Wednesday, March 8, 1995)]
[Notices]
[Pages 12811-12812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5581]



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SECURITIES AND EXCHANGE COMMISSION
[Investment Company Act Release No. 20934; International Series Release 
No. 789; 812-9262]


Mellon Bank, N.A.; Notice of Application

March 1, 1995.
AGENCY: Securities and Exchange Commission (``SEC'').

ACTION: Notice of Application for Exemption under the Investment 
Company Act of 1940 (the ``Act'').

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APPLICANT: Mellon Bank, N.A. (``MBNA'').

RELEVANT ACT SECTIONS: Sections 6(c) and 17(f).

SUMMARY OF APPLICATION: MBNA seeks an order under section 6(c) of the 
Act granting an exemption from section 17(f). The order would allow 
United States registered investment companies other than investment 
companies registered under section 7(d) (a ``U.S. Investment 
Company''), for which MBNA serves as custodian or subcustodian, to 
maintain foreign securities and assets in the United Kingdom with 
Mellon Europe Limited (``MEL''), a wholly-owned subsidiary of MBNA.

FILING DATES: The application was filed on September 29, 1994 and 
amended on February 23, 1995.

HEARING OR NOTIFICATION OF HEARING: An order granting the application 
will be issued unless the SEC orders a hearing. Interested persons may 
request a hearing by writing to the SEC's Secretary and serving 
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 March 27, 1995, 
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 may request 
notification of a hearing by writing to the SEC's Secretary.

ADDRESSES: Secretary, SEC, 450 Fifth Street, NW., Washington, DC 20549. 
Applicants, Mellon Bank, N.A., One Mellon Bank Center, Pittsburgh, 
Pennsylvania 15258-0001.

FOR FURTHER INFORMATION CONTACT:
Marianne H. Khawly, Staff Attorney, at (202) 942-0562, or C. David 
Messman, Branch Chief, at (202) 942-0564 (Division of Investment 
Mranagement, Office of Investment Company Regulation).

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.

Applicant's Representations

    1. MBNA requests an order to allow MBNA, any U.S. Investment 
Company, and any custodian for a U.S. Investment Company to maintain 
foreign securities, cash, and cash equivalents (collectively, 
``assets'') in the custody of MEL. For the purposes of this 
application, ``foreign securities'' includes: (a) securities issued and 
sold primarily outside the United States by a foreign government, a 
national of any foreign country, or a corporation or other organization 
incorporated or organized under the laws of any foreign country; and 
(b) securities issued or guaranteed by the Government of the United 
States or by any state or any political subdivision thereof of by any 
agency thereof or by any entity organized under the laws of the United 
States or of any state thereof which have been issued and sold 
primarily outside the United States.
    2. MBNA is a national banking association organized and existing 
under the laws of the United States. MBNA is regulated by the Office of 
the Comptroller of the Currency and is subject to the National Bank 
Act. As of December 31, 1993, MBNA had aggregate capital, surplus, and 
undivided profits in excess of $2,460,000,000. MBNA is a wholly-owned 
direct subsidiary of Mellon Bank Corporation (``Mellon''), a 
Pennsylvania corporation qualified as a bank holding company under the 
Bank Holding Company Act of 1956.
    3. MEL is a wholly-owned subsidiary of MBNA and is regulated by the 
Bank of England under the Banking Act of 1987. As of December 31, 1993, 
MEL had shareholders' equity slightly in excess of $10,000,000.
    4. Boston Safe Deposit and Trust Company (``Boston Safe'') is a 
subsidiary of The Boston Company, Inc. Boston Safe is organized as a 
trust company under Massachusetts law and is regulated by the 
Massachusetts Commissioner of Banks. In May 1993, Mellon acquired The 
Boston Company, Inc. and its subsidiaries, including Boston Safe. A 
major business unit of Boston Safe is Global Securities Services, which 
provides international financial and securities processing services, 
including global custody, and is qualified to hold U.S. Investment 
Company assets under section 17(f) of the Act.
    5. Mellon proposes to transfer the custody activities of the London 
branch of Boston Safe to MEL by transferring to MEL the operations and 
assets of the Global Custody Department of Boston Safe. Assets of U.S. 
Investment Companies held by the London branch of Boston Safe will not 
be transferred to MEL prior to the issuance of the requested order.\1\ 
Thereafter, MBNA, as custodian or sub-custodian for a U.S. Investment 
Company, will deposit, or cause or permit a U.S. Investment Company to 
deposit, its assets with MEL. In the alternative, MEL, as custodian or 
subcustodian will receive and hold the assets of a U.S. Investment 
Company directly from such U.S. Investment Company, its custodian or 
subcustodian, other than MBNA but including Boston Safe.

    \1\Until the requested order is issued, U.S. Investment Company 
assets will continue to be held by the London branch of Boston Safe 
or another custodian that qualifies under section 17(f) of the Act.
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Applicant's Legal Analysis

    1. Section 17(f) of the Act requires every registered management 
investment company to place and maintain its securities and similar 
investments in the custody of certain enumerated entities, including 
bank having at all times aggregate capital, surplus, and undivided 
profits of at least $500,000. A ``bank'', as that term is defined in 
section 2(a)(5) of the Act, includes: (a) a banking institution 
organized under the laws of the United States; (b) a member bank of the 
Federal Reserve System; and (c) any other banking institution or trust 
company, whether incorporated or not, doing business under the laws of 
any state or of the United States, a substantial portion of which 
consists of receiving deposits or exercising fiduciary powers similar 
to those permitted to national banks, which is supervised or examined 
by state or federal authority having supervision over banks, and which 
is not operated for the purposes of evading the Act.
    2. The only entities located outside the United States which 
section 17(f) authorizes to serve as custodians for registered 
management investment companies are the overseas branches of qualified 
U.S. banks. Rule 17f-5 expands [[Page 12812]] the group of entities 
that are permitted to serve as foreign custodians. Rule 17f-5(c)(2)(ii) 
defines the term ``Eligible Foreign Custodian'' to include a majority-
owned direct or indirect subsidiary of a qualified U.S. bank or bank 
holding company that is incorporated or organized under the laws of 
country other than the United States and that has shareholders' equity 
in excess of $100,000,000. MBNA is a qualified U.S. bank since it is a 
bank as defined in rule 17f-5(c)(3) and it has aggregate capital, 
surplus, and undivided profits of at least $500,000.
    3. MEL satisfies the requirements of rule 17f-5 insofar as it is a 
majority-owned direct or indirect foreign subsidiary of a qualified 
U.S. bank or bank holding company. MEL does not, however, meet the 
minimum shareholders' equity requirement of rule 17f-5. Accordingly, 
MEL is not an Eligible Foreign Custodian under rule 17f-5 and, absent 
exemptive relief, could not serve as a custodian for the assets of U.S. 
Investment Companies.
    4. Section 6(c) provides, in relevant part, that the SEC may, 
conditionally or unconditionally, by other, exempt any person or class 
of persons from any provision of the Act or from any rule thereunder, 
if such exemption is necessary or appropriate in the public interest, 
consistent with the protection of investors, and consistent with the 
purposes fairly intended by the policy and provisions of the Act. MBNA 
submits that its request satisfies this standard.

Applicant's Conditions

    Applicant agrees that any order of the SEC granting the requested 
relief shall be subject to the following conditions:
    1. The foreign custody arrangements proposed regarding MEL satisfy 
the requirements of rule 17f-5 in all respects other than MEL's level 
of shareholder equity.
    2. MBNA, any U.S. Investment Company, and any custodian for a U.S. 
Investment Company, will deposit assets with MEL only in accordance 
with an agreement (the ``Agreement'') required to remain in effect at 
all times during which MEL fails to satisfy the requirements of rule 
17f-5 (and during which such assets remain deposited with MEL). Each 
Agreement will be three party agreement among (a) MBNA, (b) MEL, and 
(c) the U.S. Investment Company or any custodian for a U.S. Investment 
Company (including Boston Safe) pursuant to which MBNA or MEL, as the 
case may be, will undertake to provide specified custody services. If 
MBNA is to provide such services, the Agreement will authorize MBNA to 
delegate to MEL such of the duties and obligations of MBNA as will be 
necessary to permit MEL to hold in custody the U.S. Investment 
Company's assets. If MEL is to provide service directly, no such 
delegation will be necessary. However, in either case, the Agreement 
will provide that MBNA will be liable for any loss, damage, cost, 
expense, liability, or claim arising out of or in connection with the 
performance by MEL of its responsibilities under the Agreement to the 
same extent as if MBNA had itself been required to provide custody 
services under the Agreement. Further, the Agreement will provide that, 
in the event of loss, the U.S. Investment Company or its custodian may 
pursue a claim for recovery against MBNA, regardless of whether MEL 
acted as MBNA's delegate or as direct custodian or subcustodian.
    3. MBNA currently satisfies and will continue to satisfy the 
minimum requirements for a qualified U.S. bank set forth in sections 
2(a)(5) and 17(f) of the Act.

    For the SEC, by the Division of Investment Management, under 
delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 95-5581 Filed 3-7-95; 8:45 am]
BILLING CODE 8010-01-M