Federal Register / Vol. 60, No. 73 / Monday, April 17, 1995 / Notices 19315

16The Commission encourages the NYSE to

propose a corresponding provision for expiration

days that would provide for the dissemination of

substantial MOC order imbalances on expiration

days in stock other than pilot stocks.

17 15 U.S.C. 78s(b)(2) (1988).

18 17 CFR 200.30–3(a)(12) (1994).

1The Government recently offered shares in

applicant representing 11% of applicant’s

outstanding share capital to applicant’s employees,

pension funds, cooperatives, unemployment funds

and other institutions. As a result of such offering,

0.28% of the Bank’s outstanding share capital were

purchased by such employees and institutions. The

shares that were not subscribed for in such offering

will eventually be offered by the Government to the

public in Colombia. The Government does not

intend to offer such shares in the United States.

Even after such sale, the Government would

continue to control applicant’s operations within

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

NYSE’s procedures for expiration days.

Additionally, the Commission notes

that, by permitting a Floor Official to

authorize the publication of substantial

MOC order imbalances on nonexpiration days in any stock, the

proposal should increase the

information available to market

participants and provide NYSE

specialists with a mechanism, if

necessary, to attract contra-side interest

in any NYSE-listed stock.16

The Commission is approving the

amendments to the NYSE’s auxiliary

closing procedures for expiration days

as part of the existing pilot program that

lasts until October 31, 1995. The

Commission is approving the

amendments to the NYSE’s closing

procedures for non-expiration days on a

permanent basis.

The Commission finds good cause for

approving Amendment No. 1 prior to

the thirtieth day after the date of

publication of notice of filing thereof.

Amendment No. 1 merely clarifies the

scope of the original filing. Finally, the

commission did not receive any

comments on the original proposal,

which was published in the Federal

Register for the full comment period.

IV. Solicitation of Comments

Interested persons are invited to

submit written data, views and

arguments concerning Amendment No.

1 to the proposed rule change. Persons

making written submissions should file

six copies thereof with the Secretary,

Securities and Exchange Commission,

450 Fifth Street NW., Washington, D.C.

20549. Copies of the submission, all

subsequent amendments, all written

statements with respect to the proposed

rules change that are filed with the

Commission, and all written

communications relating to Amendment

No. 1 between the Commission and any

persons, other than those that may be

withheld from the public in accordance

with the provisions of 5 U.S.C. 552, will

be available for inspection and copying

in the Commission’s Public Reference

Section, 450 Fifth Street, N.W.,

Washington, D.C. 20549. Copies of such

filing will also be available at the

principal office of the NYSE. All

submissions should refer to File No.

SR–NYSE–94–44 and should be

submitted by May 8, 1995.

V. Conclusion

It is therefore ordered, pursuant to

Section 19(b)(2) of the Act,17 that the

proposed rule change (SR–NYSE–94–

44) is approved, including Amendment

No. 1 on an accelerated basis.

For the Commission, by the Division of

Market Regulation, pursuant to delegated

authority.18

Margaret H. McFarland,

Deputy Secretary.

[FR Doc. 95–9398 Filed 4–14–95; 8:45 am]

BILLING CODE 8010–01–M

[Release No. IC–20992; International Series

Release No. 801; 812–9414]

Banco de Comercio Exterior de

Colombia S.A.; Notice of Application

April 11, 1995.

AGENCY: Securities and Exchange

Commission (‘‘SEC’’).

ACTION: Notice of application for

exemption under the Investment

Company Act of 1940 (the ‘‘Act’’).

APPLICANT: Banco de Comercio Exterior

de Colombia S.A.

RELEVANT ACT SECTION: Order requested

under section 6(c) for an exemption

from all provisions of the Act.

SUMMARY OF THE APPLICATION: Applicant

seeks an exemption under section 6(c)

from all provisions of the Act. Applicant

is a commercial bank owned and

controlled by the Republic of Colombia.

Applicant provides long- and short-term

financing and specialized financial

products to financial intermediaries.

Applicant discounts loans that such

financial intermediaries have made to

finance Colombian exports and foreign

trade-related activities. Applicant is in

the process of establishing a global

program for the issuance of debt

securities.

FILING DATES: The application was filed

on January 5, 1995 and amended on

March 15, 1995 and April 11, 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

May 4, 1995, and should be

accompanied by proof of service on

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 SEC’s Secretary.

ADDRESSES: Secretary, SEC, 450 Fifth

Street NW., Washington, D.C. 20549;

Applicant, c/o Thomas A. Curtis,

Cleary, Gottlieb, Steen & Hamilton, One

Liberty Plaza, New York, NY 10006.

FOR FURTHER INFORMATION CONTACT:

Marc Duffy, Senior Attorney, (202) 942–

0565, or Barry D. Miller, Senior Special

Counsel, (202) 942–0564 (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 SEC’s

Public Reference Branch.

Applicant’s Representations

1. Applicant is a commercial bank

owned and controlled by the Republic

of Colombia (‘‘Colombia,’’ or the

‘‘Republic’’). Applicant provides longand short-term financing and

specialized financial products to

support Colombian exports and foreign

trade-related activities. Applicant was

incorporated as the successor to the

Export Promotion Fund, a fund formed

in 1967 by the government of Colombia

(the ‘‘Government’’) to promote

Colombian exports.

2. The Republic owns 99.7% of

applicant’s share capital and controls

the applicant within the meaning of

section 2(a)(9) of the Act.1 Applicant’s

Board of Directors consists of

Government representatives, a

representative of the private sector

appointed by the President of the

Republic, and a representative of the

private sector appointed by the

exporters’ associations registered with

the Ministry of Foreign Trade.

3. Applicant is authorized to operate

under the same legal regime as a private

commercial bank, without any

limitation on the type of commercial

banking activities in which it may

engage. Applicant’s activities, like those

of other Colombian banks, are subject to

extensive regulation by the principal
19316 Federal Register / Vol. 60, No. 73 / Monday, April 17, 1995 / Notices

2Applicant does not hereby seek, and has not

obtained, any assurance from the SEC regarding

applicant’s status prior to the issuance of any

exemptive order on this application, nor has

applicant received any assurance regarding the

Notes’ status under the Securities Act.

3See Investment Company Act Release No. 18381

(Oct. 29, 1991), note 15 and accompanying text (the

‘‘Adopting Release’’).

entities governing the Colombian

banking and financial system. These

entities include the Congress of

Colombia, the National Council for

Economic and Social Policy, the Central

Bank, and the Banking

Superintendency. The regulations

applicable to applicant include

licensing, capital adequacy, foreign

currency position requirements, and

restrictions on lending activities and

related-party transactions.

4. At September 30, 1994, applicant

had assets of Ps1,085,338 million (U.S.

$1,290.7 million) and shareholders’

equity of Ps403,768 million (U.S. $480.2

million).

5. Applicant operates primarily as a

second-tier bank, extending loans to

other commercial banks and finance

companies in Colombia and abroad

(collectively, ‘‘Financial

Intermediaries’’) by discounting loans

that such Financial Intermediaries have

made to finance Colombian exporters

and foreign trade-related activities as

well as foreign buyers of Colombian

goods and services. Applicant works

together with the relevant Financial

Intermediary in originating each

discounted loan, both to ensure that the

loan meets applicant’s lending criteria

and that the necessary funding will be

available to the Financial Intermediary

to make the loan. Applicant also takes

physical possession of the promissory

note for each loan, which is endorsed to

applicant, to ensure recourse against the

ultimate borrower in the event of a

default by the Financial Intermediary.

6. Applicant does not purchase

discounted loans from entities other

than the loan originator, nor does it sell

or otherwise trade in discounted loans.

At September 30, 1994, approximately

99% of applicant’s outstanding loans

were discounted loans, with 62

Financial Intermediaries as obligors.

Over 90% of these Financial

Intermediaries are Colombian

commercial banks and finance

companies regulated in a manner

substantially similar to applicant.

7. Applicant traditionally has relied

on its shareholders’ equity as the

primary source of peso-denominated

funds. Although applicant has the

power under its charter to take deposits,

it has not done so to date because most

of applicant’s loans are made in United

States dollars, and funding such loans

with peso deposits would be

prohibitively expensive. To the extent

applicant lends in pesos, its

shareholders’ equity provides a

sufficient source of funds at a

considerably lower cost than would be

the case with deposits.

8. Applicant proposes a global

program (the ‘‘Program’’) to issue and

sell debt securities (the ‘‘Notes’’), the net

proceeds of which will be used to

expand applicant’s foreign trade-related

financing activities and for other general

corporate purposes. The principal

amount of Notes outstanding at any time

will not exceed in the aggregate United

States $300,000,000 (or its equivalent in

other currencies at the date of issue),

subject to future increases in the size of

the Program. The Notes will not be

obligations of, or guaranteed by, or

otherwise backed by the credit of, the

Republic of Colombia.

9. The Notes have not been and will

not be registered under the Securities

Act of 1933, as amended (the

‘‘Securities Act’’).2

All or a portion of a series of Notes

may be offered for sale in the United

States to ‘‘qualified institutional

buyers,’’ as defined in Rule 144A under

the Securities Act, in reliance on Rule

144A, or to institutional ‘‘accredited

investors,’’ as defined in Rule 501(a) (1),

(2), (3), and (7) under the Securities Act,

that are not also qualified institutional

buyers. All or a portion of a series of

Notes also may be offered for sale in

offshore transactions outside the United

States in reliance on Regulation S under

the Securities Act.

10. Applicant’s intention is not to

offer any Notes under the Program until

the exemptive order sought hereby has

been granted. Nevertheless, market

conditions and applicant’s funding

needs may make it necessary to proceed

with the first issuance under the

Program prior to the granting of such

order. In that case, applicant would

offer an initial series of Notes (the

‘‘Initial Notes’’) to investors in the

United States and abroad. In order to

permit such offering to proceed while

the present application for exemptive

relief was being considered, applicant

would impose special offering and

resale restrictions on the Initial Notes

(in addition to those required to comply

with the Securities Act), including a

limit on the number of U.S. resident

holders that could hold the Initial Notes

at any given time. Upon the granting of

the exemptive order, such restrictions

would be removed and resales of the

Initial Notes, and any other Notes

subject to such restrictions, would

thereafter be subject only to the

Securities Act restrictions applicable to

the Program generally.

Applicant’s Legal Analysis

1. Section 3(a)(3) of the Act defines an

investment company to include any

issuer engaged in the business of

investing, reinvesting, owning, holding,

or trading in securities, and that owns

or proposes to acquire investment

securities having a value exceeding 40%

of the issuer’s total assets, exclusive of

Government securities and cash items

on an unconsolidated basis.

Substantially all of applicant’s assets

consist of discounted loans. Such loans

could be deemed to be investment

securities within the meaning of section

3(a)(3). As a result, applicant recognizes,

for purposes of this application only,

that it could be deemed to be an

investment company.

2. Rule 3a–6 exempts foreign banks

from the definition of investment

company for all purposes under the Act.

A foreign bank is defined to include a

banking institution engaged

substantially in ‘‘commercial banking

activity,’’ which, in turn, is defined to

include ‘‘accepting demand and other

types of deposits.’’ Although applicant

is authorized to accept demand and

other types of deposits, as a matter of

policy it has chosen not to do so, and

for this reason does not fall squarely

within the terms of the exemption

provided by rule 3a–6. Therefore,

applicant may not be able to rely on rule

3a–6.

3. In adopting rule 3a–6, the SEC

recognized that other financial entities

might merit treatment similar to that

afforded by the rule. The SEC indicated

that such entities could file an

application for individual exemptive

relief under section 6(c) of the Act.3

Applicant believes that the exemptive

relief contemplated by the Adopting

Release is appropriate in the present

case. Applicant is an ‘‘export-import

bank’’ and is similar in function to U.S.

banks and other exempted entities.

Applicant is licensed as a commercial

bank in Colombia and is subject to

extensive regulation by the Colombian

authorities. Such regulation affords

substantial protection to investors. In

addition, applicant is controlled by the

Government of Colombia.

4. Section 3(c)(5)(B) of the Act

exempts from the definition of

‘‘investment company’’ any person that

is not engaged in the business of issuing

certain specified securities and that is

primarily engaged in the business of

‘‘making loans to manufacturers,

wholesalers, and retailers of, and to

prospective purchasers of, specified
Federal Register / Vol. 60, No. 73 / Monday, April 17, 1995 / Notices 19317

merchandise, insurance, and services.’’

Although other government-controlled

export financing entities have obtained

no-action relief under section 3(c)(5)(B),

their lending activities were described

as primarily sales financing; that is, the

making of loans to either exporters or

foreign buyers to finance particular sales

transactions. Applicant was created to

serve the same purpose as these other

entities.

Applicant’s loans can be described as

indirect sales financing (goods cannot

be exported unless they are first

produced). The bulk of the loans

extended by applicant, however, are

‘‘preshipment’’ loans, which finance the

working capital needs of Colombian

exporters, and are unlike the sales

financing described in the no-action

letters.

5. Applicant seeks an exemption

under section 6(c) from all provisions of

the Act. Applicant believes that it meets

the standards for relief.

Applicant’s Condition

Applicant agrees that the order

granting the requested relief shall be

subject to the following condition:

In connection with any offering of its

securities in the United States, applicant

will appoint an agent to accept any

process which may be served on it in

any action based on such securities and

instituted in the Supreme Court of the

State of New York or the United States

District Court for the Sourthern District

of New York by any holder of any such

securities. Applicant further undertakes

that it will expressly consent to the

jurisdiction of the Supreme Court of the

State of New York and the United States

District Court for the Southern District

of New York in respect of any such

action. Applicant also will waive the

defense of an inconvenient forum to the

maintenance of any such action or

proceeding. Such appointment of an

agent to accept service of process and

such consent to jurisdiction will be

irrevocable until all amounts due and to

become due in respect of such securities

have been paid. Applicant explicitly

waives any immunity it may have from

jurisdiction and from execution or

attachment or any process in the nature

thereof in respect of any suit, action or

proceeding arising out of or relating to

such securities.

For the SEC, by the Division of Investment

Management, under delegated authority.

Margaret H. McFarland,

Deputy Secretary.

[FR Doc. 95–9399 Filed 4–14–95; 8:45 am]

BILLING CODE 8010–01–M

DEPARTMENT OF TRANSPORTATION

Aviation Proceedings; Agreements

Filed During the Week Ended April 7,

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: 50262.

Date filed: April 4, 1995.

Parties: Members of the International

Air Transport Association.

Subject: TC3 Telex Mail Vote 735

Russian Federation-Japan fares r-1—

043i r-3—063i r-5—084c r-2—053i r-4—

063ii.

Proposed Effective Date: April 10,

1995.

Docket Number: 50263.

Date filed: April 4, 1995.

Parties: Members of the International

Air Transport Association.

Subject: PAC/Reso/388 dated March

28, 1995. Finally Adopted Resos r-1 to

r-7.

Proposed Effective Date: June 1, 1995.

Paulette V. Twine,

Chief, Documentary Services Division.

[FR Doc. 95–9315 Filed 4–14–95; 8:45 am]

BILLING CODE 4910–62–P

Notice of Applications for Certificates

of Public Conveyance and Necessity

and Foreign Air Carrier Permits Filed

Under Subpart Q During the Week

Ended April 7, 1995

The following Applications for

Certificates of Public Convenience and

Necessity and Foreign Air Carrier

Permits were filed under Subpart Q of

the Department of Transportation’s

Procedural Regulations (See 14 CFR

302.1701 et. seq.). The due date for

Answers, Conforming Applications, or

Motions to Modify Scope are set forth

below for each application. Following

the Answer period DOT may process the

application by expedited procedures.

Such procedures may consist of the

adoption of a show-cause order, a

tentative order, or in appropriate cases

a final order without further

proceedings.

Docket Number: 50257.

Date filed: April 3, 1995.

Due Date for Answers, Conforming

Applications, or Motion to Modify

Scope: May 1, 1995.

Description: Application of Kuwait

Airways Corporation, pursuant to

Section 402(c) of the Act 1958, as

amended, 49 U.S.C. Section 211, 5

U.S.C. Section 558(c) and Parts 211 and

377 of the Departments Regulations and

Subpart Q of the Regulations, applies for

amendment of its foreign air carrier

permit authorizing Kuwait Airways to

engage in scheduled air transportation

of persons, property and mail between

the State of Kuwait and the United

States and charter operations.

Docket Number: 50260.

Date filed: April 4, 1995.

Due Date for Answers, Conforming

Applications, or Motion to Modify

Scope: April 2, 1995.

Description: Application of Ross

Aviation, Inc., pursuant to Section 401

of the Act and Subpart Q of the

Regulations, requests scheduled and ondemand passenger transportation for

exclusive service to the Department of

Energy covering the contiguous 49 states

of the United States.

Docket Number: 50261.

Date filed: April 4, 1995.

Due Date for Answers, Conforming

Applications, or Motion to Modify

Scope: May 2, 1995.

Description: Application of LorAir,

Ltd., pursuant to 401(d)(3), of the Act

and Subpart Q of the Regulations,

requests a certificate of public

convenience and necessity authorizing

interstate and overseas charter air

transportation.

Docket Number: 50269.

Date filed: April 6, 1995.

Due Date for Answers, Conforming

Applications, or Motion to Modify

Scope: May 4, 1995.

Description: Application of Islena De

Inversiones S.A. De C.V. D/B/A Islena

Airlines, pursuant to 49 U.S.C. Section

40109 and Subpart Q of the Regulations,

requests a foreign air carrier permit to

engage in scheduled foreign air

transportation of persons, property and

mail between a point or points in

Honduras and Miami, Florida, New

Orleans, Louisiana and Houston, Texas,

and to engage in charter foreign air

transportation of persons, property and

mail.

Docket Number: 50274.

Date filed: April 7, 1995.

Due Date for Answers, Conforming

Applications, or Motion to Modify

Scope: May 5, 1995.

Description: Application of USAir,

Inc., pursuant to 49 U.S.C. Section

41101, and Subpart Q of the

Regulations, applies for a certificate of

public convenience and necessity

authorizing USAir to provide scheduled

foreign air transportation of persons,

property and mail between points in the

United States and points in Canada.

Paulette V. Twine,

Chief, Documentary Services Division.

[FR Doc. 95–9316 Filed 4–14–95; 8:45 am]

BILLING CODE 4910–62–P