46058 Federal Register / Vol. 73, No. 153 / Thursday, August 7, 2008 / Notices 

1Applicants request that any order issued 

granting the relief requested in the application also 

apply to any closed-end investment company that 

in the future: (a) is advised by the Adviser 

(including any successor in interest) or by any 

entity controlling, controlled by, or under common 

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

Act) with the Adviser; and (b) complies with the 

terms and conditions of the requested order. A 

successor in interest is limited to entities that result 

from a reorganization into another jurisdiction or a 

change in the type of business organization. 

Proclamation 8213, as modified by 

Proclamation 8272, the President 

modified the HTS to implement the 

Amendment with respect to the 

CAFTA–DR parties. These 

modifications are set forth in sections A, 

B, and C of the Annex to Proclamation 

8213, as modified by paragraph 2 of 

Annex VI to Proclamation 8272. 

Proclamations 8213 and 8272 provide 

for these modifications to enter into 

effect on the date, as announced by the 

USTR in the Federal Register, that the 

Amendment enters into force, and to be 

effective with respect to goods entered, 

or withdrawn from warehouse for 

consumption, on or after that date. I 

anticipate that the Amendment will 

enter into force on August 15, 2008. 

Accordingly, I announce that these 

modifications to the HTS shall enter 

into effect on August 15, 2008. 

2. Rule of Origin for Woven Apparel 

Section 203(o) of the CAFTA–DR 

Implementation Act (19 U.S.C. 4033(o)) 

authorizes the President to proclaim, as 

part of the HTS, the provisions set out 

in Annex 4.1 of the CAFTA–DR. Among 

these provisions is a rule of origin set 

out in Appendix 4.1–B of the CAFTA–

DR that provides, subject to certain 

conditions, for Mexican and Canadian 

inputs to be treated as though they 

originated in a CAFTA–DR country for 

purposes of determining whether 

certain woven apparel imported into the 

United States qualifies for duty-free 

treatment under the agreement. In 

Proclamation 8213, as modified by 

Proclamation 8272, the President 

modified the HTS to implement this 

rule of origin. These modifications are 

set forth in section D of the Annex to 

Proclamation 8213, as modified by 

paragraph 1 of Annex VI to 

Proclamation 8272. 

Proclamations 8213 and 8272 provide 

for these modifications to the HTS to 

enter into effect on the date, as 

announced by the USTR in the Federal 

Register, that the Amendment enters 

into force and the conditions set forth in 

paragraph (a), paragraph (b), or both, of 

footnote 1 to Appendix 4.1–B of the 

CAFTA–DR have been fulfilled, and to 

be effective with respect to goods 

entered, or withdrawn from warehouse 

for consumption, on or after that date. 

I anticipate that the Amendment will 

enter into force on August 15, 2008. In 

addition, all of the conditions set forth 

in paragraph (a) of footnote 1 to 

Appendix 4.1–B of the CAFTA–DR have 

been fulfilled and therefore the rule of 

origin may enter into force with respect 

to woven apparel containing materials 

produced in Mexico. Accordingly, I 

announce that these modifications to 

the HTS shall enter into effect on 

August 15, 2008, with respect to 

materials produced in Mexico. 

Susan C. Schwab, 

U.S. Trade Representative. 

[FR Doc. E8–18216 Filed 8–6–08; 8:45 am] 

BILLING CODE 3190–W8–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Investment Company Act Release No. 

28348; 812–13377] 

DNP Select Income Fund Inc., et al.; 

Notice of Application 

July 31, 2008. 

AGENCY: Securities and Exchange 

Commission (‘‘Commission’’). 

ACTION: Notice of application under 

section 6(c) of the Investment Company 

Act of 1940 (‘‘Act’’) for an exemption 

from section 19(b) of the Act and rule 

19b–1 under the Act. 

SUMMARY OF APPLICATION: Applicants 

request an order to permit a closed-end 

investment company to make periodic 

distributions of long-term capital gains 

with respect to its outstanding common 

stock as frequently as twelve times each 

year, and as frequently as distributions 

are specified by or in accordance with 

the terms of any outstanding preferred 

stock that such investment company 

may issue. 

APPLICANTS: DNP Select Income Fund 

Inc. (the ‘‘Fund’’) and Duff & Phelps 

Investment Management Co. (the 

‘‘Adviser’’). 

FILING DATES: April 11, 2007 and July 

24, 2008. 

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 August 25, 2008, 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, Securities and 

Exchange Commission, 100 F Street, 

NE., Washington, DC 20549–1090; 

Applicants, 55 East Monroe Street, Suite 

3600, Chicago, IL 60603, Attention: 

Nathan I. Partain. 

FOR FURTHER INFORMATION CONTACT: 

Wendy Friedlander, Senior Counsel, at 

(202) 551–6837, or James M. Curtis, 

Branch Chief, at (202) 551–6825 

(Division of Investment Management, 

Office of Chief Counsel). 

SUPPLEMENTARY INFORMATION: The 

following is a summary of the 

application. The complete application 

may be obtained for a fee at the 

Commission’s Public Reference Room, 

100 F Street, NE., Washington, DC 

20549–1520 (telephone (202) 551–5850). 

Applicants’ Representations 

1. The Fund is a registered closed-end 

management investment company 

organized as a Maryland corporation. 

The Fund’s primary investment 

objectives are current income and longterm growth of income, with a 

secondary objective of capital 

appreciation.1 The Fund’s common 

stock is listed on the New York Stock 

Exchange, and the Fund’s preferred 

stock is not listed on any exchange. 

Applicants believe that the Fund’s 

shareholders are generally conservative, 

income-sensitive investors who desire 

steady distributions of income and who 

will favor a distribution policy with 

respect to its common stock. 

2. The Adviser is registered under the 

Investment Advisers Act of 1940 and is 

responsible for the overall management 

of the Fund and other registered 

investment companies and institutional 

accounts. 

3. Applicants represent that on 

February 21, 2007, the Board of 

Directors (the ‘‘Board’’) of the Fund, 

including a majority of the directors 

who are not ‘‘interested persons’’ of the 

Fund as defined in section 2(a)(19) of 

the Act (the ‘‘Independent Directors’’), 

reviewed information regarding the 

purpose and terms of a proposed 

distribution policy, the likely effects of 

such policy on the Fund’s long-term 

total return (in relation to market price 

and net asset value (‘‘NAV’’) per 

common share) and the relationship 

between the Fund’s distribution rate on 

its common shares under the policy and 

the Fund’s total return on NAV per 

share. Applicants state that the 


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Independent Directors also considered 

what conflicts of interest the Adviser 

and the affiliated persons of the Adviser 

and the Fund might have with respect 

to the adoption or implementation of 

the policy. Applicants further state that 

after considering such information the 

Board, including the Independent 

Directors, of the Fund approved a 

managed distribution policy and related 

plan with respect to the Fund’s common 

shares (the ‘‘Plan’’) and determined that 

such policy and Plan are consistent with 

the Fund’s investment objectives and in 

the best interests of the Fund’s common 

stockholders. 

4. Applicants state that the purpose of 

the Plan is to provide to the Fund’s 

common stockholders a regular, 

monthly distribution that is not 

dependent on the timing or amount of 

investment income earned or capital 

gains realized by the Fund. Applicants 

represent that, under the Plan, the Fund 

will distribute all available investment 

income to common stockholders, 

consistent with the Fund’s primary 

investment objective of current income 

and long-term growth of income. 

Applicants state that, if and when 

sufficient investment income is not 

available on a monthly basis, the Fund 

will distribute long-term capital gains 

and/or return of capital to its 

stockholders to maintain the level 

distribution rate that has been approved 

by the Board. Applicants state that the 

minimum annual distribution rate will 

be independent of the Fund’s 

performance during any particular 

period but is expected to correlate with 

the Fund’s performance over time. 

Applicants note that the amount and 

frequency of distributions may be 

amended at any time by the Board 

without prior notice to the Fund’s 

shareholders. Applicants explain that if 

the Fund’s net investment income and 

net realized capital gains for any year 

exceed the amount required to be 

distributed under the Plan, the Fund 

will, at a minimum, make distributions 

necessary to comply with the 

distribution requirements of subchapter 

M of the Internal Revenue Code of 1986 

(the ‘‘Code’’). Applicants state that the 

Plan provides that it can be amended, 

suspended or terminated at any time by 

the Board without prior notice to the 

Fund’s shareholders. 

5. Applicants state that at the 

February 21, 2007 meeting, the Board 

also adopted policies and procedures 

under rule 38a–1 under the Act that are 

reasonably designed to ensure that all 

notices sent to the Fund’s stockholders 

with distributions under the Plan 

(‘‘Notices’’) comply with condition II 

below, and that all other written 

communications by the Fund or its 

agents regarding distributions under the 

Plan include the disclosure required by 

condition III below. Applicants state 

that the Board also adopted policies and 

procedures at that meeting that require 

the Fund to keep records that 

demonstrate the Fund’s compliance 

with all of the conditions of the 

requested order and that are necessary 

for the Fund to form the basis for, or 

demonstrate the calculation of, the 

amounts disclosed in its Notices. 

Applicants’ Legal Analysis 

1. Section 19(b) generally makes it 

unlawful for any registered investment 

company to make long-term capital 

gains distributions more than once each 

year. Rule 19b–1 limits the number of 

capital gains dividends, as defined in 

section 852(b)(3)(C) of the Code 

(‘‘distributions’’), that a fund may make 

with respect to any one taxable year to 

one, plus a supplemental ‘‘clean up’’

distribution made pursuant to section 

855 of the Code not exceeding 10% of 

the total amount distributed for the year, 

plus one additional capital gain 

dividend made in whole or in part to 

avoid the excise tax under section 4982 

of the Code. 

2. Section 6(c) provides that the 

Commission may, by order upon 

application, conditionally or 

unconditionally exempt any person, 

security, or transaction, or any class or 

classes of persons, securities or 

transactions, from any provision of the 

Act, if and 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 Act. 

3. Applicants state that one of the 

concerns underlying section 19(b) and 

rule 19b–1 is that shareholders might be 

unable to differentiate between regular 

distributions of capital gains and 

distributions of investment income. 

Applicants state, however, that rule 

19a–1 effectively addresses this concern 

by requiring that a separate statement 

showing the sources of a distribution 

(e.g., estimated net income, net shortterm capital gains, net long-term capital 

gains and/or return of capital) 

accompany any distributions (or the 

confirmation of the reinvestment of 

distributions) estimated to be sourced in 

part from capital gains or capital. 

Applicants state that the same 

information also is included in the 

Fund’s annual reports to shareholders 

and on its IRS Form 1099 DIV, which is 

sent to each common and preferred 

shareholder who received distributions 

during the year. 

4. Applicants further state that the 

Fund will make the additional 

disclosures required by the conditions 

set forth below, and has adopted 

compliance policies and procedures in 

accordance with rule 38a–1 to ensure 

that all required Notices and disclosures 

are sent to shareholders. Applicants 

argue that by providing the information 

required by section 19(a) and rule 19a–

1, and by complying with the 

procedures adopted under the Plan and 

the conditions listed below, the Fund 

would ensure that the Fund’s 

stockholders are provided sufficient 

information to understand that their 

periodic distributions are not tied to the 

Fund’s net investment income (which 

for this purpose is the Fund’s taxable 

income other than from capital gains) 

and realized capital gains to date, and 

may not represent yield or investment 

return. Applicants also state that 

compliance with the Fund’s compliance 

procedures and condition III set forth 

below will ensure that prospective 

shareholders and third parties are 

provided with the same information. 

Accordingly, Applicants assert that 

continuing to subject the Fund to 

section 19(b) and rule 19b–1 would 

afford stockholders no extra protection. 

5. Applicants note that section 19(b) 

and rule 19b–1 also were intended to 

prevent certain improper sales practices, 

including, in particular, the practice of 

urging an investor to purchase shares of 

a fund on the basis of an upcoming 

capital gains dividend (‘‘selling the 

dividend’’), where the dividend would 

result in an immediate corresponding 

reduction in NAV and would be in 

effect a taxable return of the investor’s 

capital. Applicants assert that the 

‘‘selling the dividend’’ concern should 

not apply to closed-end investment 

companies, such as the Fund, which do 

not continuously distribute shares. 

According to Applicants, if the 

underlying concern extends to 

secondary market purchases of shares of 

closed-end funds that are subject to a 

large upcoming capital gains dividend, 

adoption of the Plan actually helps 

minimize the concern by avoiding, 

through periodic distributions, any 

buildup of large end-of-the-year 

distributions. 

6. Applicants also note that common 

stock of closed-end funds that invest 

primarily in equity securities often trade 

in the marketplace at a discount to their 

NAV. Applicants believe that the Fund’s 

history of making regular, monthly 

distributions has had a significant 

positive effect on the market price of the 

Fund’s common stock. 

7. Applicants assert that the 

application of rule 19b–1 to a Plan 


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46060 Federal Register / Vol. 73, No. 153 / Thursday, August 7, 2008 / Notices 

2Returns of capital as used in the application 

means return of capital for financial accounting 

purposes and not for tax accounting purposes. 

3The Internal Revenue Service has agreed, in 

Private Letter Rulings 8842048, 8850018, 

200332005 and 200604008, that the Fund’s 

remarketed preferred shares (but not its auction 

preferred shares) are entitled to the benefit of the 

‘‘grandfather clause’’ of Revenue Ruling 89–81, in 

that the Fund is permitted to make a preferential 

allocation to the remarketed preferred shares of 

dividends eligible for the dividends received 

deduction in accordance with the registration 

statements for the remarketed preferred shares filed 

in July and August of 1988. In all other respects, 

Revenue Ruling 89–81 is applicable to the Fund’s 

common and preferred shares. 

4Applicants state that a future fund that relies on 

the requested order will satisfy each of the 

representations in the application except that such 

representations will be made in respect of actions 

by the board of directors of such future fund and 

will be made at a future time. 

actually could have an undesirable 

influence on portfolio management 

decisions. Applicants state that, in the 

absence of an exemption from rule 19b–

1, the implementation of a Plan imposes 

pressure on management (i) not to 

realize any net long-term capital gains 

until the point in the year that the fund 

can pay all of its remaining distributions 

in accordance with rule 19b–1, and (ii) 

not to realize any long-term capital 

gains during any particular year in 

excess of the amount of the aggregate 

pay-out for the year (since as a practical 

matter excess gains must be distributed 

and accordingly would not be available 

to satisfy pay-out requirements in 

following years), notwithstanding that 

purely investment considerations might 

favor realization of long term gains at 

different times or in different amounts. 

Applicants thus assert that the 

limitation on the number of capital gain 

distributions that a fund may make with 

respect to any one year imposed by rule 

19b–1, may prevent the efficient 

operation of a Plan whenever that fund’s 

realized net long-term capital gains in 

any year exceed the total of the periodic 

distributions that may include such 

capital gains under the rule. 

8. In addition, Applicants assert that 

rule 19b–1 may cause fixed regular 

periodic distributions under a Plan to be 

funded with returns of capital2 (to the 

extent net investment income and 

realized short-term capital gains are 

insufficient to fund the distribution), 

even though realized net long-term 

capital gains otherwise could be 

available. To distribute all of a fund’s 

long-term capital gains within the limits 

in rule 19b–1, a fund may be required 

to make total distributions in excess of 

the annual amount called for by its Plan, 

or to retain and pay taxes on the excess 

amount. Applicants thus assert that the 

requested order would minimize these 

effects of rule 19b–1 by enabling funds 

to realize long term-capital gains as 

often as investment considerations 

dictate without fear of violating rule 

19b–1. 

9. Applicants state that Revenue 

Ruling 89–81 under the Code requires 

that a fund that has both common stock 

and preferred stock outstanding 

designate the types of income, e.g., 

investment income and capital gains, in 

the same proportion as the total 

distributions distributed to each class 

for the tax year.3 To satisfy the 

proportionate designation requirements 

of Revenue Ruling 89–81, whenever a 

fund has realized a long-term capital 

gain with respect to a given tax year, the 

fund must designate the required 

proportionate share of such capital gain 

to be included in common and preferred 

stock dividends. Applicants state that 

although rule 19b–1 allows a fund some 

flexibility with respect to the frequency 

of capital gains distributions, a fund 

might use all of the exceptions available 

under the rule for a tax year and still 

need to distribute additional capital 

gains allocated to the preferred stock to 

comply with Revenue Ruling 89–81. 

10. Applicants assert that the 

potential abuses addressed by section 

19(b) and rule 19b–1 do not arise with 

respect to preferred stock issued by a 

closed-end fund. Applicants assert that 

such distributions are either fixed or are 

determined in periodic auctions by 

reference to short-term interest rates 

rather than by reference to performance 

of the issuer, and Revenue Ruling 89–81 

determines the proportion of such 

distributions that are comprised of the 

long-term capital gains. 

11. Applicants also submit that the 

‘‘selling the dividend’’ concern is not 

applicable to preferred stock, which 

entitles a holder to no more than a 

periodic dividend at a fixed rate or the 

rate determined by the market, and, like 

a debt security, is priced based upon its 

liquidation value, dividend rate, credit 

quality, and frequency of payment. 

Applicants state that investors buy 

preferred shares for the purpose of 

receiving payments at the frequency 

bargained for, and do not expect the 

liquidation value of their shares to 

change. 

12. Applicants request an order under 

section 6(c) granting an exemption from 

the provisions of section 19(b) and rule 

19b–1 to permit the Fund (and any 

future funds advised by the Adviser that 

have a similar distribution plan and 

make similar representations to those 

set forth in the application) to distribute 

periodic capital gains dividends (as 

defined in section 852(b)(3)(C) of the 

Code) as often as monthly in any one 

taxable year in respect of its common 

shares and as often as specified by or 

determined in accordance with the 

terms thereof in respect of its preferred 

shares.4

Applicants’ Conditions 

Applicants agree that, with respect to 

the Fund and each future fund seeking 

to rely on the order, the order will be 

subject to the following conditions: 

I. Compliance Review and Reporting. 

The fund’s chief compliance officer 

will: (a) report to the fund Board, no less 

frequently than once every three months 

or at the next regularly scheduled 

quarterly board meeting, whether (i) the 

fund and the fund adviser have 

complied with the conditions to the 

requested order, and (ii) a Material 

Compliance Matter, as defined in rule 

38a–1(e)(2), has occurred with respect to 

compliance with such conditions; and 

(b) review the adequacy of the policies 

and procedures adopted by the fund no 

less frequently than annually. 

II. Disclosures to Fund Shareholders: 

A. Each Notice to the holders of the 

fund’s common shares, in addition to 

the information required by section 

19(a) and rule 19a–1: 

1. Will provide, in a tabular or 

graphical format: 

(a) The amount of the distribution, on 

a per share basis, together with the 

amounts of such distribution amount, 

on a per share basis and as a percentage 

of such distribution amount, from 

estimated: (A) Net investment income; 

(B) net realized short-term capital gains; 

(C) net realized long-term capital gains; 

and (D) return of capital or other capital 

source; 

(b) The fiscal year-to-date cumulative 

amount of distributions, on a per share 

basis, together with the amounts of such 

cumulative amount, on a per share basis 

and as a percentage of such cumulative 

amount of distributions, from estimated: 

(A) Net investment income; (B) net 

realized short-term capital gains; (C) net 

realized long-term capital gains; and (D) 

return of capital or other capital source; 

(c) The average annual total return in 

relation to the change in NAV for the 5- 

year period (or, if the fund’s history of 

operations is less than five years, the 

time period commencing immediately 

following the fund’s first public 

offering) ending on the last day of the 

month prior to the most recent 

distribution declaration date compared 

to the current fiscal period’s annualized 

distribution rate expressed as a 

percentage of NAV as of the last day of 


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Federal Register / Vol. 73, No. 153 / Thursday, August 7, 2008 / Notices 46061 

the month prior to the most recent 

distribution declaration date; and 

(d) The cumulative total return in 

relation to the change in NAV from the 

last completed fiscal year to the last day 

of the month prior to the most recent 

distribution declaration date compared 

to the fiscal year-to-date cumulative 

distribution rate expressed as a 

percentage of NAV as of the last day of 

the month prior to the most recent 

distribution declaration date. 

Such disclosure shall be made in a 

type size at least as large and as 

prominent as the estimate of the sources 

of the current distribution; and 

2. Will include the following 

disclosure: 

(a) ‘‘You should not draw any 

conclusions about the fund’s investment 

performance from the amount of this 

distribution or from the terms of the 

fund’s Plan’’; 

(b) ‘‘The fund estimates that it has 

distributed more than its income and 

net realized capital gains; therefore, a 

portion of your distribution may be a 

return of capital. A return of capital may 

occur for example, when some or all of 

the money that you invested in the fund 

is paid back to you. A return of capital 

distribution does not necessarily reflect 

the fund’s investment performance and 

should not be confused with ‘yield’ or 

‘income’ ’’; and 

(c) ‘‘The amounts and sources of 

distributions reported in this Notice are 

only estimates and are not being 

provided for tax reporting purposes. The 

actual amounts and sources of the 

amounts for [accounting and] tax 

reporting purposes will depend upon 

the fund’s investment experience during 

the remainder of its fiscal year and may 

be subject to changes based on tax 

regulations. The fund will send you a 

Form 1099 DIV for the calendar year 

that will tell you how to report these 

distributions for federal income tax 

purposes.’’

Such disclosure shall be made in a 

type size at least as large as and as 

prominent as any other information in 

the Notice and placed on the same page 

in close proximity to the amount and 

the sources of the distribution. 

B. On the inside front cover of each 

report to shareholders under rule 30e–

1 under the Act, the fund will: 

1. Describe the terms of the Plan 

(including the fixed amount or fixed 

percentage of the distributions and the 

frequency of the distributions); 

2. Include the disclosure required by 

condition II.A.2(a) above; 

3. State, if applicable, that the Plan 

provides that the Board may amend or 

terminate the Plan at any time without 

prior notice to fund shareholders; and 

4. Describe any reasonably foreseeable 

circumstances that might cause the fund 

to terminate the Plan and any 

reasonably foreseeable consequences of 

such termination. 

C. Each report provided to 

shareholders under rule 30e–1 and each 

prospectus filed with the Commission 

on Form N–2 under the Act, will 

provide the fund’s total return in 

relation to changes in NAV in the 

financial highlights table and in any 

discussion about the fund’s total return. 

III. Disclosure to Shareholders, 

Prospective Shareholders and Third 

Parties: 

A. The fund will include the 

information contained in the relevant 

Notice, including the disclosure 

required by condition II.A.2 above, in 

any written communication (other than 

a Form 1099) about the Plan or 

distributions under the Plan by the 

fund, or agents that the fund has 

authorized to make such 

communication on the fund’s behalf, to 

any fund shareholder, prospective 

shareholder or third-party information 

provider; 

B. The fund will issue, 

contemporaneously with the issuance of 

any Notice, a press release containing 

the information in the Notice and will 

file with the Commission the 

information contained in such Notice, 

including the disclosure required by 

condition II.A.2 above, as an exhibit to 

its next filed Form N–CSR; and 

C. The fund will post prominently a 

statement on its (or its adviser’s) Web 

site containing the information in each 

Notice, including the disclosure 

required by condition II.A.2 above, and 

will maintain such information on such 

web site for at least 24 months. 

IV. Delivery of 19(a) Notices to 

Beneficial Owners: If a broker, dealer, 

bank or other person (‘‘financial 

intermediary’’) holds common stock 

issued by the fund in nominee name, or 

otherwise, on behalf of a beneficial 

owner, the fund: (a) Will request that 

the financial intermediary, or its agent, 

forward the Notice to all beneficial 

owners of the fund’s shares held 

through such financial intermediary; (b) 

will provide, in a timely manner, to the 

financial intermediary, or its agent, 

enough copies of the Notice assembled 

in the form and at the place that the 

financial intermediary, or its agent, 

reasonably requests to facilitate the 

financial intermediary’s sending of the 

Notice to each beneficial owner of the 

fund’s shares; and (c) upon the request 

of any financial intermediary, or its 

agent, that receives copies of the Notice, 

will pay the financial intermediary, or 

its agent, the reasonable expenses of 

sending the Notice to such beneficial 

owners. 

V. Additional Board Determinations 

for Funds Whose Shares Trade at a 

Premium: If: 

A. The fund’s common shares have 

traded on the exchange that they 

primarily trade on at the time in 

question at an average premium to NAV 

equal to or greater than 10%, as 

determined on the basis of the average 

of the discount or premium to NAV of 

the fund’s common shares as of the 

close of each trading day over a 12-week 

rolling period (each such 12-week 

rolling period ending on the last trading 

day of each week); and 

B. The fund’s annualized distribution 

rate for such 12-week rolling period, 

expressed as a percentage of NAV as of 

the ending date of such 12-week rolling 

period is greater than the fund’s average 

annual total return in relation to the 

change in NAV over the 2-year period 

ending on the last day of such 12-week 

rolling period; then: 

1. At the earlier of the next regularly 

scheduled meeting or within four 

months of the last day of such 12-week 

rolling period, the Board including a 

majority of the Independent Directors: 

(a) Will request and evaluate, and the 

fund’s adviser will furnish, such 

information as may be reasonably 

necessary to make an informed 

determination of whether the Plan 

should be continued or continued after 

amendment; 

(b) Will determine whether 

continuation, or continuation after 

amendment, of the Plan is consistent 

with the fund’s investment objective(s) 

and policies and in the best interests of 

the fund and its shareholders, after 

considering the information in 

condition V.B.1.a above; including, 

without limitation: 

(1) Whether the Plan is accomplishing 

its purpose(s); 

(2) The reasonably foreseeable effects 

of the Plan on the fund’s long-term total 

return in relation to the market price 

and NAV of the fund’s common shares; 

and 

(3) The fund’s current distribution 

rate, as described in condition V.B 

above, compared with the fund’s 

average annual taxable income or total 

return over the 2-year period, as 

described in condition V.B, or such 

longer period as the Board deems 

appropriate; and 

(c) Based upon that determination, 

will approve or disapprove the 

continuation, or continuation after 

amendment, of the Plan; and 

2. The Board will record the 

information considered by it and the 

basis for its approval or disapproval of 


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46062 Federal Register / Vol. 73, No. 153 / Thursday, August 7, 2008 / Notices 

5 If the fund has been in operation fewer than two 

years, the measured period will begin immediately 

following the fund’s first public offering. 

6 If the fund has been in operation fewer than five 

years, the measured period will begin immediately 

following the fund’s first public offering. 

the continuation, or continuation after 

amendment, of the Plan in its meeting 

minutes, which must be made and 

preserved for a period of not less than 

six years from the date of such meeting, 

the first two years in an easily accessible 

place. 

VI. Public Offerings: The fund will not 

make a public offering of the fund’s 

common shares other than: 

A. A rights offering below NAV to 

holders of the fund’s common stock; 

B. An offering in connection with a 

dividend reinvestment plan, merger, 

consolidation, acquisition, spin off or 

reorganization of the fund; or 

C. An offering other than an offering 

described in conditions VI.A and VI.B 

above, unless, with respect to such other 

offering: 

1. The fund’s average annual 

distribution rate for the six months 

ending on the last day of the month 

ended immediately prior to the most 

recent distribution declaration date,5

expressed as a percentage of NAV per 

share as of such date, is no more than 

1 percentage point greater than the 

fund’s average annual total return for 

the 5-year period ending on such date; 6

and 

2. The transmittal letter 

accompanying any registration 

statement filed with the Commission in 

connection with such offering discloses 

that the fund has received an order 

under section 19(b) to permit it to make 

periodic distributions of long-term 

capital gains with respect to its common 

stock as frequently as twelve times each 

year, and as frequently as distributions 

are specified by or determined in 

accordance with the terms of any 

outstanding preferred stock that such 

fund may issue. 

VII. Amendments to Rule 19b–1: The 

requested order will expire on the 

effective date of any amendments to rule 

19b–1 that provide relief permitting 

certain closed-end investment 

companies to make periodic 

distributions of long-term capital gains 

with respect to their outstanding 

common stock as frequently as twelve 

times each year. 

For the Commission, by the Division of 

Investment Management, under delegated 

authority. 

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–18150 Filed 8–6–08; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Investment Company Act Release No. 

28347; 812–13456] 

Goldman Sachs Trust, et al.; Notice of 

Application 

July 31, 2008. 

AGENCY: Securities and Exchange 

Commission (‘‘Commission’’). 

ACTION: Notice of application for an 

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

Investment Company Act of 1940 

(‘‘Act’’) for an 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: 

Applicants request an order that would 

permit certain registered open-end 

management investment companies to 

acquire shares of other registered openend management investment companies 

and unit investment trusts that are 

within and outside the same group of 

investment companies. 

APPLICANTS: Goldman Sachs Trust 

(‘‘GST’’), Goldman Sachs Variable 

Insurance Trust (‘‘VIT,’’ and together 

with GST, the ‘‘Trusts’’), Goldman 

Sachs Asset Management, L.P. 

(‘‘GSAM’’) and Goldman Sachs Asset 

Management International (‘‘GSAMI,’’

and together with GSAM, the 

‘‘Advisers’’). 

FILING DATES: The application was filed 

on November 27, 2007 and amended on 

May 29, 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 August 25, 2008, 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, c/o Jack W. Murphy, 

Esq., Dechert LLP, 1775 I Street, NW., 

Washington, DC 20006–2401. 

FOR FURTHER INFORMATION CONTACT: 

Barbara T. Heussler, Senior Counsel, at 

(202) 551–6990, or Marilyn Mann, 

Branch Chief, at (202) 551–6821 (Office 

of Investment Company Regulation, 

Division of Investment Management). 

SUPPLEMENTARY INFORMATION: The 

following is a summary of the 

application. The complete application 

may be obtained for a fee at the 

Commission’s Public Reference Desk, 

100 F Street, NE., Washington, DC 

20549–1520 (telephone (202) 551–5850). 

Applicants’ Representations 

1. The Trusts, organized as Delaware 

statutory trusts, are registered under the 

Act as open-end management 

investment companies and offer 

multiple series, each of which has its 

own distinct investment objectives and 

policies (‘‘Funds’’). GST currently offers 

86 Funds and VIT offers 11 Funds. 

Shares of the Trusts are registered under 

the Securities Act of 1933, as amended 

(the ‘‘1933 Act’’). Shares of GST are 

offered directly to the public. Shares of 

VIT are not offered directly to the public 

but only to insurance company separate 

accounts (‘‘Separate Accounts’’) that 

fund variable annuity and variable life 

insurance contracts (‘‘Variable 

Contracts’’) issued by participating 

insurance companies. The Separate 

Accounts may be registered under the 

Act (‘‘Registered Separate Accounts’’), 

or unregistered thereunder 

(‘‘Unregistered Separate Accounts’’). 

2. GSAM is a Delaware limited 

partnership and a wholly-owned 

subsidiary of The Goldman Sachs 

Group, Inc. GSAM is a registered 

investment adviser under the 

Investment Advisers Act of 1940, as 

amended (the ‘‘Advisers Act’’) and 

serves as investment adviser for eightysix of the Funds. GSAMI is a company 

organized under the laws of England 

and Wales and is a registered 

investment adviser under the Advisers 

Act. GSAMI is indirectly wholly-owned 

by The Goldman Sachs Group, Inc. 

3. Applicants request relief to permit: 

(a) A Fund (each a ‘‘Fund of Funds’’) to 

acquire shares of registered open-end 

management investment companies (the 

‘‘Unaffiliated Investment Companies’’) 

and unit investment trusts (‘‘UITs’’) that 

are not part of the same ‘‘group of 

investment companies’’ as defined in 

section 12(d)(1)(G)(ii) of the Act 

(‘‘Unaffiliated Trusts,’’ and together 

with Unaffiliated Investment 

Companies, the ‘‘Unaffiliated Funds’’); 

(b) the Unaffiliated Investment 

Companies, their principal underwriters 


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