[Federal Register Volume 59, Number 88 (Monday, May 9, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11034]


[[Page Unknown]]

[Federal Register: May 9, 1994]


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SECURITIES AND EXCHANGE COMMISSION
[Rel. No. IC-20266; File No. 812-8858]

 

John Hancock Mutual Variable Life Insurance Account UV, et al.

May 2, 1994.
AGENCY: Securities and Exchange Commission (``SEC'' or the 
``Commission'').

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

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APPLICANTS: John Hancock Mutual Variable Life Insurance Account UV 
(``Variable Account UV''), John Hancock Variable Life Account V 
(``Variable Account V''), John Hancock Mutual Life Insurance Company 
(``John Hancock''), and John Hancock Variable Life Insurance Company 
(``JHVLICO''). (Variable Account UV and Variable Account V shall be 
referred to collectively as the ``Variable Accounts''; the Variable 
Accounts, John Hancock, and JHVLICO shall be referred to collectively 
as the ``Applicants.'')

RELEVANT 1940 ACT SECTIONS AND RULES: Order requested under Section 
6(c) of the 1940 Act for exemptions from the following: those 
provisions of the 1940 Act and those rules specified in paragraph (b) 
of Rule 6e-2 thereunder, other than sections 7 and 8(a); sections 
2(a)(32), 2(a)(35), 22(c), 26(a)(1), 26(a)(2), 27(a)(1), 27(a)(3), 
27(c)(1), 27(c)(2), 27(d) and 27(f) of the 1940 Act; and Rules 6e-
2(b)(1), (b)(12), (b)(13)(i), (b)(13)(ii), (b)(13)(iii), (b)(13(iv), 
(b)(13)(v), (b)(13)(viii), (c)(1) and (c)(4), 22c-1, and 27f-1 
thereunder.

SUMMARY OF APPLICATION: Applicants seek an order permitting them to 
offer and sell certain multi-option variable life insurance policies 
(individually, the ``Policy,'' collectively, the ``Policies'') that 
provide for the following: A death benefit which will not always vary 
based on investment performance; both a contingent deferred sales 
charge and a sales charge deducted from premiums, neither of which is 
subject to refunds; deduction of an administrative surrender charge on 
lapse or surrender; deduction from the Policy's account value of cost 
of insurance charges, charges for substandard mortality risks and 
incidental insurance benefits, and minimum death benefit guarantee risk 
charges; values and charges based on the 1980 Commissioners' Standard 
Ordinary Mortality Tables (the ``1980 CSO Tables''); elimination of, or 
reduction in, front-end sales charges in certain cases; the holding of 
mutual fund shares funding the Variable Accounts in an open account 
arrangement, without a trust indenture and the use of a trustee; and a 
``free look'' right which may provide for the return of amounts other 
than total premiums paid upon cancellation of a Policy.

FILING DATE: February 25, 1994.

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 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 27, 1994, 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 may request notification of a hearing by 
writing to the Secretary of the Commission.

ADDRESSES: Secretary, SEC, 450 Fifth Street, NW., Washington, DC 20549. 
Applicants, John Hancock Place, Boston, MA 02117.

FOR FURTHER INFORMATION CONTACT:
Patrice M. Pitts, Attorney, or Wendell M. Faria, Deputy Chief, Office 
of Insurance Products, Division of Investment Management, at (202) 942-
0670.

SUPPLEMENTARY INFORMATION: Following is a summary of the application. 
The complete application is available for a fee from the Commission's 
Public Reference Branch.

Applicants' Representations

    1. An application very similar to this one was filed by Variable 
Account V, JHVLICO, and John Hancock on August 18, 1987 (File No. 812-
6835). An order was granted by the Commission on December 29, 1987.\1\ 
A second, very similar application was filed by Variable Account UV and 
John Hancock on June 3, 1993 (File No. 812-8426). An order was granted 
by the Commission on September 29, 1993.\2\ Applicants are filing this 
new application because John Hancock and JHVLICO are proposing to issue 
a new form of Policy which contains changes in certain features of the 
policies described in those 1987 and 1993 applications. The changes 
relate principally to the forms of death benefit which may be elected 
by the Policy owner, the minimum premium requirements, the pricing of 
the Policy, and the elimination of certain Policy provisions relating 
to the use of any ``excess value''\3\ available under the Policy. In 
most other respects, the Policies retain the essential nature of the 
policies that were the subject of the 1987 and 1993 applications.
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    \1\The original application was amended on November 12, 1987. 
The notice of the filing of the application was issued on November 
30, 1987 (Investment Company Act Release No. 16152); an order was 
granted on December 29, 1987 (Investment Company Act Release No. 
16197).
    \2\Investment Company Act Release No. 19746 (Sept. 29, 1993).
    \3\``Excess value'' may result from favorable investment 
performance, the insurers' deduction of Policy charges at less than 
the maximum guaranteed rates, or the payment of premiums in excess 
of the required premiums.
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    2. John Hancock is a mutual life insurance company chartered under 
the laws of Massachusetts in 1862. JHVLICO, a subsidiary of John 
Hancock, is a stock life insurance company organized under the laws of 
Massachusetts in 1979. (John Hancock and JHVLICO are sometimes referred 
to herein as the ``insurers.'')
    3. The Board of Directors of John Hancock established Variable 
Account UV on May 10, 1993, pursuant to Massachusetts law. Each 
Variable Account is registered under the 1940 Act as a unit investment 
trust type of investment company. Variable Account UV and Variable 
Account V are separate investment accounts of John Hancock and JHVLICO, 
respectively, to which assets will be allocated from time to time to 
support benefits payable under each insurer's variable life insurance 
policies, including the Policies.
    4. Variable Account UV and Variable Account V each consists of 
seven subaccounts (the ``Subaccounts''), each of which will invest its 
assets in a different portfolio of John Hancock Variable Series Trust I 
(the ``Fund''). Subaccounts may be added or deleted from time to time.
    5. The Policy incorporates certain fundamental features 
characteristic of scheduled premium variable life insurance policies 
contemplated by Rule 6e-2, including a guarantee against lapse if 
specified required premiums are paid by their due dates.\4\ In 
addition, Policy owners will have the options of:
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    \4\The required premiums are level until the insured reaches age 
70. At that time, a ``premium recalculation'' is performed, if the 
Policy owner has not previously elected to have the premium 
recalculated. The premium recalculation may result in lower or 
higher subsequent required premiums.
    In addition to the ``base policy premium'' under a Policy (i.e., 
an amount determined at Policy issuance based on the age, gender, 
and smoking status of the insured,) the required premium for each 
Policy year includes an additional amount if the insured is in a 
substandard risk category or if optional fixed insurance benefits 
have been added to the Policy by rider. Part of this additional 
premium will be collected by the insurers out of any premium 
payments which are paid during the year. The remaining additional 
premium will be deducted from cash value in equal monthly 
installments during the year.
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    (i) Making premium payments in excess of the required premiums, or
    (ii) Omitting required premium payments due at any time when there 
is any excess value under the Policy.
    6. The insurers will deduct a premium expense charge of 8.6% of 
each premium paid. This deduction is for sales expenses (5%) and state 
premium taxes (2.35%), and a federal deferred acquisition cost tax 
charge (1.25%).\5\
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    \5\The deferred acquisition cost component of the premium 
expense charge will be deducted by Applicants in conformity with, 
and reliance upon, previously obtained exemptive relief. Investment 
Company Act Rel. No. 19868 (Nov. 24, 1993), 55 SEC Docket 1446 (Dec. 
7, 1993) (File No. 812-8446).
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    7. The insurers will waive a portion of the sales charge deducted 
from each premium paid on a Policy with a guaranteed death benefit of 
$250,000 or higher. The continuation of this waiver, however, is not 
contractually guaranteed, and the waiver may be withdrawn or modified 
by the insurers at any time. Moreover, because the initial guaranteed 
death benefit may be reduced after issue, it is possible that the 
waiver could apply at some times with respect to a given Policy and not 
at a subsequent time with respect to the same Policy. The deduction 
from premiums for sales expenses during any Policy year is limited to 
5% of premiums paid in that year that do not exceed one year's required 
premium.
    8. The insurers also will deduct a contingent deferred sales charge 
(``CDSC'') upon surrender or lapse of a Policy during the first 
thirteen Policy years. The CDSC is a percentage of the lesser of (a) 
the total amount of premiums paid before the date of surrender or lapse 
or (b) the sum of the base policy premiums due on or before the date of 
surrender or lapse. Excess value may be withdrawn from the Policy 
without imposition of any CDSCs.
    9. The maximum CDSC is an amount equal to 15% of the base policy 
premium for the first through sixth Policy years. The greatest CDSC 
will be applied to Policies that are surrendered or lapse at the end of 
Policy years six or seven. In the seventh through thirteenth Policy 
years, the CDSC decreases each Policy year until it is zero in and 
after the fourteenth Policy year.
    10. A portion of the CDSC will be charged on a partial surrender of 
the guaranteed death benefit during the first thirteen Policy years.
    11. The total dollar amount of sales load under a Policy is no 
higher than that permitted by Rule 6e-2(b)(13) for a conventional 
scheduled premium variable life insurance policy, and a Policy owner 
who surrenders his or her Policy or whose Policy lapses prior to the 
fourteenth policy year pays no more dollars in sales load than could be 
charged if the load were deducted entirely from premiums.
    12. An issue charge will be deducted from account value on monthly 
anniversaries in twelve equal installments of $20 per Policy in the 
first Policy year. This charge is to help cover expenses incurred in 
connection with the issuance of the Policy, other than sales expenses. 
Such expenses include medical examinations, insurance underwriting 
costs, and costs incurred in processing applications and establishing 
permanent Policy records. This charge is not designed to yield a profit 
to Applicants.
    13. An administrative surrender charge may be deducted if the 
Policy is surrendered or lapses in the first nine Policy years. This 
charge is to compensate partially for estimated administrative expenses 
such as the cost of collecting and processing premiums, processing 
applications, conducting medical examinations, establishing Policy 
records, determining insurability and assigning the insured to a risk 
classification, and issuing the Policy. These expenses exclude any 
costs properly attributable to sales or distribution activity.
    14. The maximum administrative surrender charge is $5 per $1000 of 
the Policy's guaranteed death benefit if the lapse or surrender is in 
the first six Policy years, $4 per $1000 of its guaranteed death 
benefit if the lapse or surrender is in the seventh or eighth Policy 
years, and $3 per $1000 of guaranteed death benefit if the lapse or 
surrender is in the ninth Policy year. For insureds age 24 or younger 
at time of issue of a Policy, the charge will never exceed $200 and 
will be charged only in the first four Policy years.
    15. Currently, the insurers do not intend to assess an 
administrative surrender charge with respect to a Policy of $250,000 or 
more of guaranteed death benefit at the time of surrender or lapse. Nor 
do the insurers currently intend to assess such a charge if a Policy of 
less than $250,000 of guaranteed death benefit is surrendered or lapsed 
after the fourth Policy year. The insurers currently intend to charge 
no more than $300 for a surrender or lapse in the first four Policy 
years of a Policy of less than $250,000 of guaranteed death benefit. 
These lower current charges may be withdrawn or modified by the insurer 
at any time.
    16. A maintenance charge will be deducted from account value on 
each monthly anniversary at a rate of $6 (which monthly rate may not be 
raised to more than $8) per Policy. This charge is to help cover the 
ongoing costs of administering a Policy, and is not designed to yield a 
profit to Applicants.
    17. Twenty-five dollars ($25) will be deducted from account value 
upon each withdrawal of excess value. This charge will be designed only 
to defray the estimated costs of effecting excess value withdrawals.
    18. Each insurer will assess a daily mortality and expense risk 
charge at an effective rate of 0.6% per annum of the Variable Account 
assets attributable to the Policy. This charge is for the risk that 
insureds may live for shorter periods of time than estimated, and that 
costs of issuing and administering the Policies may be higher than 
estimated.
    19. Each insurer will deduct cost of insurance charges from account 
value on each monthly anniversary of a Policy at rates that do not 
exceed those prescribed in the 1980 CSO Tables. Generally, the actual 
rates initially charged will be lower than the maximum guaranteed 
rates, and insureds in a non-smoker or preferred category will have 
more favorable cost of insurance rates than insureds in the standard 
risk classification.
    20. The insurers also will charge lower current cost of insurance 
rates under a Policy with a current guaranteed death benefit of 
$250,000 or more. These lower cost of insurance rates are not 
contractually guaranteed, and may be changed or withdrawn by the 
insurers at any time.
    21. The insurers reserve the right to make charges for federal, 
state, and local taxes. Fund investment advisory expenses and certain 
other operating expenses of the Fund are indirectly borne by Policy 
owners.
    22. The insurers impose two death benefit guarantee risk charges:
    (i) A monthly charge of up to $0.03 (currently $0.01) per $1,000 of 
guaranteed death benefit; and
    (ii) Up to 3% (currently 1.5%) of the amount applied on a premium 
recalculation, where the new level premium is less than what it would 
have been had the Policy originally been issued without the premium 
recalculation feature. These charges compensate the insurers for the 
risk that they assume in guaranteeing death benefits under the 
Policies, including the risk that the account value will not be 
sufficient to support the guarantees.
    23. Under the laws of some states, the insurers may now or in the 
future be required to credit investment losses and gains during the 
``free look'' period to Policy owners who exercise their ``free look'' 
right. In such cases, and under the terms of the Policy, the insurers 
will refund the sum of the account value as of the date the insurers 
receive the returned Policy, plus the sum of all charges deducted from 
premium payments and all other charges imposed on amounts allocated to 
the Variable Accounts.

Applicants' Legal Analysis and Conclusions

    Applicants request exemptions pursuant to section 6(c) of the 1940 
Act from: Those provisions of the 1940 Act and those rules specified in 
paragraph (b) of Rule 6e-2 thereunder, other than sections 7 and 8(a); 
sections 2(a)(32), 2(a)(35), 22(c), 26(a)(1), 26(a)(2), 27(a)(1), 
27(a)(3), 27(c)(1), 27(c)(2), 27(d) and 27(f) of the 1940 Act; and 
Rules 6e-2(b)(1), (b)(12), (b)(13)(i), (b)(13)(ii), (b)(13)(iii), 
(b)(13)(iv), (b)(13)(v), (b)(13)(viii), (c)(1) and (c)(4), 22c-1, and 
27f-1 thereunder. Applicants seek these exemptions to the extent 
necessary to permit them to offer and sell the Policies.

A. Request for Exemptions Relating To Definition of ``Variable Life 
Insurance Contract''

    1. Rule 6c-3 grants exemptions from numerous provisions of the 1940 
Act to separate accounts of life insurance companies that support 
variable life insurance policies. The exemptions provided by Rule 6c-3 
are available only to registered separate accounts whose assets are 
derived solely from the sale of ``variable life insurance contracts'' 
that meet the definition set forth in Rule 6e-2(c)(1) or ``flexible 
premium variable life insurance contracts'' that meet the definition 
set forth in Rule 6e-3(T)(c)(1) under the 1940 Act, and from certain 
advances made by the insurer.
    2. A ``variable life insurance contract'' is defined in Rule 6e-
2(c)(1) to include only life insurance policies that provide both a 
death benefit and a cash surrender value which vary to reflect the 
investment experience of the separate account, and that guarantee that 
the death benefit will not be less than an amount stated in the policy. 
The required guaranteed minimum death benefit need be provided only so 
long as premiums are duly paid in accordance with the terms of the 
policy.
    3. At the time of application for a Policy, the owner may select 
from three death benefit options. One of the options is a variable 
death benefit which generally is equal to the sum of the guaranteed 
death benefit and any excess value. The remaining two options provide a 
level death benefit which generally is equal to the guaranteed death 
benefit.
    4. The variable death benefit under the Policy will vary based upon 
investment performance to the extent that favorable investment 
performance creates excess value that is applied to increase the 
guaranteed death benefit. The death benefit under any Policy will vary 
with investment performance when the account value is sufficiently 
large that, in order to qualify the Policy as life insurance for 
federal income tax purposes, the death benefit must be increased. This 
could happen, for example, because of very favorable investment 
performance, the payment of excess premiums, or both. Indeed, in 
anticipation of such variations, the Policy owner, by choosing among 
the available death benefit options, determines whether the ``guideline 
premium and cash value corridor test'' or the ``cash value accumulation 
test'' (as defined in each case in section 7702 of the Internal Revenue 
Code) will be used for this purpose.
    5. Applicants submit that the death benefit under the Policy varies 
to reflect investment experience within the meaning of Rule 6e-2(c)(1). 
Applicants concede, however, that the death benefit under the Policy is 
not precisely the type of variable death benefit contemplated when Rule 
6e-2 was adopted, and that the Policy contains other provisions that 
are not specifically addressed in Rule 6e-2. Accordingly, Applicants 
request exemptions from the definition of ``variable life insurance 
contract'' in Rule 6e-2(c)(1) and from all sections of the 1940 Act and 
rules thereunder specified in Rule 6e-2(b) (other than sections 7 and 
8(a)), under the same terms and conditions applicable to a separate 
account that satisfies the conditions set froth in Rule 6e-2(a), and to 
the extent necessary to permit the offer and sale of the Policy in 
reliance on Rule 6e-2, except as otherwise set forth herein.
    6. Applicants submit that the definition of ``variable life 
insurance contract'' in Rule 6e-2(c)(1) was drafted at a time when all 
the variable life insurance policies then contemplated clearly met this 
definition, and that the considerations that led the Commission to 
grant the exemptions in Rule 6e-2 did not depend in any material way 
upon the fact that the death benefit, as well as cash values, varied 
with investment experience. Nor did such consideration depend on 
whether a scheduled premium policy also provided for substantial 
premium payment flexibility and other features so long as the scheduled 
premiums, if paid when due, provided for a minimum death benefit 
guaranteed to at least equal the initial face amount.
    7. Applicants submit that, under the types of variable life 
insurance policies that have been issued in reliance on Rule 6e-2, the 
extent to which favorable investment experience is used to increase 
death benefits rather than cash values differs considerably among the 
policies offered by different issuers. Applicants further submit that, 
under all policy designs, the degree to which investment performance 
changes the death benefit necessarily has an impact on cash values 
under the policy.
    8. Applicants assert that, generally speaking, higher death 
benefits require higher cost of insurance deductions, which in turn 
result in lower cash values. Applicants submit that it is desirable for 
purchasers to be free to choose a benefit structure which they believe 
suits their own needs with respect to the relationship of cash value, 
death benefit and investment performance. Applicants represent that 
Policy owners can do this within the framework of the Policy by, for 
example, deciding which of the three available death benefit options to 
select.
    9. Applicants further submit that the considerations that led the 
Commission to adopt Rules 6c-3 and 6e-2 apply equally to each Variable 
Account and the Policy, and that the exemptions provided by these rules 
should be granted to Applicants on the terms specified in those rules, 
except to the extent that further exemption from those terms is 
specifically requested herein.
    10. Applicants note that proposed amendments to Rule 6e-2 would 
amend Rule 6e-2(c)(1) to require only that the death benefit may vary 
based on investment performance.

B. Request for Exemptions Relating to Sales Charges

    1. Sections 26(a)(2) and 27(c)(2) may be construed to require that 
proceeds of all payments under a Policy be deposited in the appropriate 
Variable Account and that no payment be made from the Variable Account 
to either insurer or any affiliated person of either insurer, except 
for bookkeeping and other administrative services. Each insurer's 
imposition of a CDSC may be deemed inconsistent with the foregoing 
provisions, to the extent that the deduction would constitute payment 
for an expense not specifically permitted. Applicants request 
exemptions from sections 26(a)(2)(C) and 27(c)(2) to the extent 
necessary to permit the CDSC to be deducted, as described herein, upon 
surrender (full or partial) or lapse of a Policy.
    2. Section 2(a)(35) and Rules 6e-2 (b)(1) and (c)(4) may be 
construed to contemplate that the sales charge for a variable life 
insurance policy will be deducted from premiums. Each insurer's 
deduction of a CDSC may be deemed inconsistent with these provisions. 
Applicants request exemptions from section 2(a)(35) and Rules 6e-2 
(b)(1) and (c)(4), to the extent necessary to permit part of the 
Policy's sales charge to be deducted from premium payments, and part as 
a CDSC.
    3. Applicants submit that Rule 6e-2(c)(4) can be construed to 
comprehend a sales charge imposed on other than premiums. This is 
because the definition is an intellectual construct rather than a 
reflection of the actual methodology of administering variable life 
insurance policies, referring, in paragraphs (i) and (ii), for example, 
to other amounts that are not deducted from premiums.
    4. Section 27(a)(1) and Rule 6e-2(b)(13)(i) may be construed to 
contemplate that the sales charge under the Policy will be deducted 
from premiums. Each insurers's deduction of part of its sales charge on 
a contingent deferred basis may be deemed inconsistent with the 
foregoing provisions, to the extent that the sales charge is deducted 
from other than premiums. Applicants request an exemption from these 
provisions to the extent necessary to permit part of the Policy's sales 
charge to be deducted from premium payments, and part to be deducted as 
a CDSC.
    5. Sections 2(a)(32), 27(c)(1), and 27(d), in pertinent part, 
prohibit Applicants from selling the Policy unless it is a ``redeemable 
security.''\6\ Rules 6e-2(b)(12), (b)(13)(iv), and (b)(13)(v) afford 
exemptions from section 27(c)(1), and Rules 6e-2(b)(13)(iv) and 
(b)(13)(v) afford exemptions from section 27(d), to the extent 
necessary for cash value to be regarded as satisfying the redemption 
and sales charge refund requirements of the 1940 Act. However, the 
exemptions afforded by Rules 6e-2(b)(12), (b)(13)(iv), and (b)(13)(v) 
may not contemplate a contingent deferred sales charge. Moreover, the 
insureds' deduction of the CDSC may be viewed as reducing the proceeds 
that the Policy owner would receive on surrender below the Policy 
owner's proportionate share of the Variable Account's current net 
assets. Applicants request an exemption from the foregoing provisions 
to the extent necessary to permit part of the Policy's sales charge to 
be deducted from premium payments, and part to be deducted as a CDSC.
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    \6\Section 2(a)(32) offers the following definition of 
``redeemable security'': ``Any security, other than short-term 
paper, under the terms of which the holder, upon its presentation to 
the issuer or to a person designated by the issuer, is entitled * * 
* to receive approximately his proportionate share of the issuer's 
current net assets, or the cash equivalent thereof.''
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    6. Applicants represent that Rule 6e-2 was adopted at a time when 
less flexibility regarding premium payments and other policy features 
was offered than subsequently has been permitted. Because of these 
features, particularly premium flexibility, less than the full amount 
of required premiums may be paid on or before the relevant due dates. 
It is unclear how the technical sales load computation provisions in 
Rule 6e-2 apply under such circumstances, particularly with respect to 
a contingent deferred sales charge.
    7. Applicants submit that the CDSC is similar to the ``redemption'' 
charge authorized in section 10(d)(4) of the 1940 Act, and that 
Congress obviously intended that such a redemption charge, which is 
expressly described as a ``discount from net asset value,'' be deemed 
consistent with the concept of ``proportionate share'' under section 
2(a)(32).
    8. Applicants submit that there will be no restriction on, or 
impediment to, surrender that should cause the Policy to be considered 
other than a redeemable security within the meaning of the 1940 Act and 
the rules thereunder. The Policy provides for full or partial surrender 
and withdrawals of excess value. The prospectus for the Policy will 
disclose the contingent deferred nature of part of the sales charge. 
Upon surrender or lapse, a Policy owner will receive his or her 
``proportionate share'' of the Variable Account--i.e., the amount of 
net premiums paid, reduced by the amount of all charges and increased 
by the amount of all return credited to the Policy.
    9. Rule 22c-1, adopted pursuant to section 22(c), prohibits 
Applicants from redeeming a Policy except at a price based on the 
current net asset value of the Policy that is next computed after 
receipt of the request for full or partial surrender of the Policy. 
Rule 6e-2(b)(12) affords exemptions from Rule 22c-1. Rules 22c-1 and 
6e-2(b)(12), read together, impose requirements with respect to both 
the amount payable on surrender and the time as of which such amount is 
calculated. Each insurer's CDSC may be deemed inconsistent with section 
22(c) and Rule 22c-1 to the extent that the sales charge can be viewed 
as causing a Policy to be redeemed at a price based on less than the 
current net asset value that is next computed after full or partial 
surrender of the Policy.
    10. Applicants submit that the CDSC will not have the dilutive 
effect which Rule 22c-1 is designed to prohibit because a surrendering 
Policy owner would ``receive'' no more than an amount equal to the cash 
surrender value determined pursuant to the formula set out in his 
Policy and after receipt of his request. Furthermore, variable life 
insurance policies, by nature, do not lend themselves to the kind of 
speculative short-term trading that Rule 22c-1 was aimed against, and, 
even if they could be so used, the CDSC would discharge, rather than 
encourage, any such trading.
    11. Applicants submit that deduction of part of the sales charge as 
a deferred charge on surrender or lapse will be more favorable to 
Policy owners than deduction of the same amount of charge from 
premiums. First, the amount of the Policy owner's premium payment that 
will be allocated to the Variable Account, and be available to earn a 
return for the Policy owner, will be greater than it would be if the 
sales charge were deducted from premiums. Second, the total dollar 
amount of sales load under a Policy is no higher than that permitted by 
Rule 6e-2(b)(13) for a conventional scheduled premium variable life 
insurance policy; for a Policy owner who does not lapse or surrender in 
the early Policy years, the dollar amount of sales load is lower than 
would be permitted if taken entirely as front-end deductions from a 
Policy's premium payments. Third, the cost of insurance charge imposed 
will be less than it otherwise would be if the same amount of sales 
charge were deducted from premium payments, because the allocation of a 
greater amount of the Policy owner's premium to the Variable Account 
reduces the amount at risk (i.e., the amount of death benefit less the 
account value) upon which the cost of insurance charge is based. 
Moreover, Applicants represent that the insurers' sales load structures 
provide equitable treatment to both surrendering and persisting Policy 
owners.
    12. The CDSC, although imposed on other than the premium, will 
cover expenses associated with the offer and sale of the Policy, just 
as other forms of sales loads do. Applicants submit that the mere fact 
that the timing of the imposition of the CDSC may not fall neatly 
within the literal pattern of all provisions discussed briefly above, 
does not change its essential nature as a sales charge. Moreover, 
Applicants represent that proposed amendments to Rule 6e-2 would permit 
assessment of a sales charge on a contingent deferred basis, and that 
such charges also are authorized by Rule 6e-3(T) for insurance policies 
able to rely on that Rule.
    13. Applicants represent that the insurers' respective percentages 
of sales load will never exceed the sum of 30% of the premium payments 
paid for the first Policy year plus 10% of premium payments paid for 
the second Policy year, and will not exceed 9% of premium payments 
expected to be paid over the lesser of 20 years or the expected 
lifetime of the insured. For this reason, Applicants submit that the 
Policy is consistent with the principles and policies underlying the 
sales load limitations in section 27(a)(2), Rule 6e-2 (b)(13)(i) and 
(b)(13)(v).
    14. Applicants submit that premium and other flexibility options 
under the Policy are a potential benefit to Policy owners.

C. Request for Exemptions Relating To Collection of Administrative 
Surrender Charge

    1. Applicants' deduction of the administrative surrender charge 
pursuant to the Policies may be deemed to violate sections 2(a)(32), 
22(c), 27(c)(1), 27(d), and Rule 22c-1 for essentially the same reasons 
as the CDSC might be deemed to violate those 1940 Act provisions and 
rules. Applicants request exemptions from the foregoing provisions to 
the extent necessary to permit the deduction of the administrative 
surrender charge upon early surrender or lapse of a Policy.
    2. Applicants submit that imposition of the administrative 
surrender charge is more favorable to Policy owners than a charge 
deducted entirely from premiums or from account value over the life of 
the Policy. The reduction of the owner's investment in the Variable 
Account is less than it would be were this charge taken in full in the 
first Policy year. This results in a larger account value initially 
earning a return for the Policy owner. For a Policy owner who does not 
lapse or surrender in the early Policy years, the total dollar amount 
of the charges for issuance and maintenance expenses is lower than the 
insurers would be permitted to deduct from premium payments or by way 
of periodic deductions from a Policy's account value. As to all Policy 
owners, the total dollar amount of the administrative surrender charge 
will be no higher than the insurers would be permitted to deduct if 
this charge were in the form of a deduction from premium payments and/
or from account value prior to a Policy's lapse or surrender.
    3. Applicants represent that this charge has not been increased to 
take account of the time value of money (i.e., the insurers' respective 
investment costs attributable to deferment of the charge) or the fact 
that not all Policy owners would incur the charge.
    4. Neither insurer anticipates making a profit on the 
administrative surrender charge.
    5. Administrative charges deducted in the form of a surrender 
charge are specifically permitted by Rule 6e-3(T) for variable life 
insurance policies offered and sold in reliance on that rule. 
Applicants submit that their requested relief with respect to the 
administrative surrender charge under the Policies is equally 
appropriate.

D. Request for Exemptions Relating To Deduction of Insurance Charges 
From Account Value

    1. Sections 26(a)(2) and 27(c)(2) of the 1940 Act may be construed 
to prohibit the insurers from deducting certain insurance charges from 
the account value.\7\ Applicants request exemptions from the foregoing 
sections and Rule 6e-2(b)(13)(iii)\8\ to the extent necessary to permit 
deduction of certain insurance charges from account value, as described 
herein.
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    \7\The insurers seek to deduct the following insurance charges 
from account value: cost of insurance charges; charges assessed for 
incidental insurance benefits or for substandard risk 
classifications; the charge deducted for the risk of guaranteeing 
the guaranteed death benefit; and the charges imposed for assuming 
the risk of the additional death benefit guarantees associated with 
certain required premium reductions as a result of premium 
recalculations.
    \8\In pertinent part, Rule 6e-2(b)(13)(iii) provides an 
exemption from sections 26(a)(2)(C) and 27(c)(2), subject to certain 
conditions which Applicants represent that they satisfy.
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    2. Applicants submit that deduction of cost of insurance charges 
from account value is fair and reasonable, and in accordance with the 
practice of most other variable life insurance policies. Applicants 
further submit that deduction of a portion of the charges for 
substandard risks and incidental insurance benefits from account value 
is also reasonable and appropriate. If all such charges were required 
to be deducted solely from premiums, it would be necessary for the 
insurers to (a) reduce the premium flexibility under the Policy and/or 
(b) further limit the classes of insureds for whom the Policy will be 
available and limit or eliminate the kinds of rider benefits the 
insurers intend to make available.
    3. Applicants submit that their methods of deducting insurance 
charges is not designed to yield more revenues than if these charges 
were assessed solely against premiums.
    4. Applicants submit that Rule 6e-3(T) authorizes deductions from 
account value for all of these insurance charges in connection with 
policies eligible to rely on that rule, and that proposed amendments to 
Rule 6e-2 would authorize deductions from account value of this risk 
charges for guaranteed benefits.
    5. Applicants submit that each insurer's method of deducting cost 
of insurance charges is fair and reasonable, and consistent with 
general industry practice.
    6. Applicants submit that charges for substandard risks and 
incidental insurance benefits must be deducted from account value, as a 
practical matter.
    7. Each insurer assesses two death benefit guarantee risk charges. 
These charges compensate each insurer for the risk it assumes in 
guaranteeing death benefits under the Policy, including the risk that 
the account value will not be sufficient to support the guarantees. 
Because of the Policy owner's flexibility with respect to the payment 
of premiums, the insurer's method of assessing the risk charges for the 
death benefit guarantees permits each Policy owner to pay charges more 
commensurate with the risks under his or her own Policy. Applicants 
submit that it is more appropriate and suitable to deduct those charges 
from the account value than from premiums, as deducting the charges 
from premiums would require Policy owners who pay more premiums to 
subsidize the guarantee risks assumed under the Policies of Policy 
owners who pay fewer premiums.
    8. Each insurer represents that the level of the death benefit 
guarantee risk charges is reasonable in relation to the risks assumed 
by each insurer under the Policy. The methodology used to support this 
representation is an analysis of each insurer's mortality risks, taking 
into account such factors as each insurer's contractual right to 
increase insurance charges above current levels, the level of risk 
inherent in the various insurance benefits provided by the Policy and 
the possibility of ``anti-selection'' risks resulting from Policy 
owners' exercise of the various flexibility features under the Policy, 
all based on each insurer's experience with other insurance products. 
Each insurer undertakes to keep and make available to the Commission on 
request the documents or memoranda used to support this representation.
    9. Each insurer further represents that there is a reasonable 
likelihood that the distribution financing arrangement of each Variable 
Account will benefit the Variable Account and Policy owners. Each 
insurer will keep and make available to the Commission on request a 
memorandum setting forth the basis of this representation.
    10. Applicants agree that if the requested order is granted, such 
order will be expressly conditioned on Applicants' compliance with the 
following: Each Variable Account will invest only in management 
investment companies which have undertaken, in the event they should 
adopt any plan under Rule 12b-1 to finance distribution expenses, to 
have a board of directors, a majority of whom are not interested 
persons of the company, formulate and approve such plan.

E. Request for Exemptions Relating to Use of 1980 CSO Tables

    1. Rule 6e-2(b)(1) makes the definition of ``sales load'' in Rule 
6e-2(c)(4) applicable to the Policy. Section 27(a)(1) of the 1940 Act 
prohibits an issuer of periodic payment plan certificates from imposing 
a sales load exceeding 9% of the payments to be made on such 
certificates. Rule 6e-2(b)(13)(i) provides an exemption from section 
27(a)(1) to the extent that ``sales load,'' as defined Rule 6e-2(c)(4), 
does not exceed 9% of the payments to be made on the variable life 
insurance policy during the period equal to the lesser of 20 years or 
the anticipated life expectancy of the insured based on the 1958 CSO 
Table.
    2. Rule 6e-2(c)(4), in defining ``sales load,'' contemplates the 
deduction of an amount for the cost of insurance based on the 1958 CSO 
Tables and the assumed investment return specified in the Policy. 
Following the adoption of Rule 6e-2, the National Association of 
Insurance Commissioners adopted the 1980 CSO Tables. The guaranteed 
cost of insurance rates under each insurer's Policy are based on the 
1980 CSO Tables. Applicants request exemptions from section 27(a)(1) 
and Rules 6e-2(b)(1), (b)(13)(i), and (c)(4) to the extent necessary to 
permit cost of insurance to be calculated for purposes of testing 
compliance with the rule based on the 1980 CSO Tables.
    3. Applicants represent that proposed amendment to Rule 6e-2 would 
permit use of either the 1958 or the 1980 CSO Tables for purposes of 
Rule 6e-2(b)(13)(i) and (c)(4), depending on which relates to the 
insurance rates guaranteed under an insurance policy.\9\
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    \9\In addition, Applicants note that Rule 6e-3(T) requires that 
the 1980 CSO Tables be used for all policies offered in reliance on 
that Rule.
---------------------------------------------------------------------------

    4. Applicants represent that state insurance laws require that each 
insurer use 1980 CSO Tables in establishing premium rates and 
determining reserve liabilities for the Policy.
    5. Applicants further represent that cost of insurance charges 
based on the 1980 CSO Tables generally are lowered than those based on 
the 1958 CSO Tables, and that, for the most part, this results in lower 
charges and higher Policy values than if the charges are based upon the 
1958 CSO Tables. Furthermore, Applicants assert that the mortality 
rates reflected in the 1980 CSO Tables more nearly approach the 
mortality experience which they expect under the Policy.

F. Request for Exemptions Relating to ``Stair-Step'' Requirements

    1. Section 27(a)(3) of the 1940 Act generally provides that the 
amount of sales charge deducted from any of the first twelve monthly 
payments on a periodic payment plan certificate may not exceed 
proportionately the amount deducted from any other such payment and 
that the amount deducted from any subsequent payment cannot exceed 
proportionately the amount deducted from any other subsequent payment.
    2. Rule 6e-2(b)(13)(ii) grants an exemption from section 27(a)(3), 
provided that the proportionate amount of sales load deducted from any 
payment during the contract period shall not exceed the proportionate 
amount deducted from any prior payment, unless the increase is caused 
by the grading of cash values into reserves or reductions in the annual 
cost of insurance.
    3. Applicants represent that section 27(a)(3) of the 1940 Act and 
Rule 6e-2(b)(13)(ii)--commonly referred to as the ``stair-step'' 
provisions--may be deemed inconsistent with deduction of a deferred 
sales charge. Moreover, Rule 6e-2 was adopted at a time when less 
flexibility regarding premium payments and other policy features was 
offered than has been permitted subsequently. Because of these 
``flexibility features,'' particularly premium flexibility, more or 
less than the full amount of the required premiums may be paid on or 
before the relevant due dates. For these reasons, Applicants request an 
exemption from section 27(a)(3) and Rule 6e-2(b)(13)(ii) to the extent 
necessary to permit deduction of the front-end sales charge as part of 
the premium expense charge, and deduction of the CDSC on surrender or 
lapse of a Policy or partial surrender of the basic death benefit.
    4. Applicants do not believe that either section 27(a)(3) or Rule 
6e-2(b)(13)(ii) apply to deferred sales loads. In this regard, 
Applicants assert that both the statutory provision and the rule apply 
by their terms only to ``amounts deducted from payments,'' and a 
deferred sales load is not deducted from payments.
    5. Applicants note that proposed amendments to Rule 6e-2 would 
modify the stair-step provisions to make them applicable to sales loads 
deducted other than from payments. Applicants assert that if a 
modification is necessary to apply these provisions to a deferred sales 
load, then without such modification the provisions should not apply.
    6. Applicants represent that the CDSC (if calculated as a 
percentage of based policy premiums due to date) never increases from 
year to year; the total increase annually by 15% of one year's based 
policy premium in the early years and is reduced in later years. In no 
case is the percentage increase in the CDSC (if calculated as a 
percentage of one year's base policy premium) for any year greater than 
that for the previous year.
    7. In addition, Applicants represent that each insurer will waive a 
portion of any sales charge otherwise deducted from premiums paid on a 
Policy with a guaranteed death benefit of at least $250,000. The 
continuation of this waiver is not contractually guaranteed, however, 
and the waiver may be withdrawn or modified by each insurer at any 
time. Because the waiver of the front-end sales charge applies only 
when the guaranteed death benefit is at least $250,000, it is possible 
that the waiver could apply at some times with respect to a given 
Policy and not at a subsequent time with respect to the same Policy. 
Because section 27(a)(3) and Rule 6e-2(b)(13)(ii) appear to prohibit 
this condition, Applicants request an exemption from those provisions 
to the extent necessary to permit them to waive the sales charge 
deducted from premiums under the circumstances described herein.
    8. The insurers will not impose the 5% front-end sales charge upon 
the amount of any premium payments received in any Policy year that are 
in excess of the annual required premium for the year (``Excess 
Premiums''). Accordingly, the front-end sales charge may apply to some 
premium payments and not to others. Because section 27(a)(3) and Rule 
6e-2(b)(13)(ii) appear to prohibit this, Applicants request an 
exemption from those provisions to the extent necessary to omit 
deducting any sales charge from Excess Premiums.
    9. The insurers have designed the Policies so that they are 
``refund proof''--i.e., they never will require the repayment of any 
sales charges pursuant to Rule 6e-2(b)(13)(v)(A). The Policies would 
remain refund proof, and (subject to the exemptive relief requested in 
the application) would continue to comply with all of the other sales 
charge limitations and requirements in Rule 6e-2, even if the front-end 
sales charge were deducted from all premium payments. This front-end 
charge structure, however, also would be less favorable to Policy 
owners than that provided under the Policies.
    10. The higher sales charge on the first required premium paid 
under a Policy in any Policy year, as compared with that imposed on 
Excess Premiums, in part reflects the fact that the insurers will incur 
lower overall distribution costs (e.g., commissions paid to sales 
persons) in connection with Excess Premiums over the life of the 
Policies. To impose the full 5% sales charge on Excess Premiums would 
generate more revenue than the insurers believe is necessary to 
adequately defray such expenses. Thus, Applicants' design provides a 
significant benefit to Policy owners by passing through to them a 
portion of the insurers' lower distribution costs with respect to 
Excess Premiums. Applicants submit that it would not be in the interest 
of Policy owners to require the imposition of a sales charge on Excess 
Premiums that is higher than Applicants deem necessary.
    11. Applicants represent that the prospectus for the Policies will 
contain disclosure informing Policy owners how to minimize sales charge 
deductions from premiums paid.
    12. Applicants assert that the stair-step requirements are designed 
to discourage unduly complicated sales load structures. Applicants 
submit that the sales charge design of the Policy is not unduly 
complicated and will be fully disclosed in the prospectus pertaining to 
the Policy.
    13. Applicants submit that sales charges are not designed to 
generate more revenues from later payments than from earlier payments.
    14. Applicants represent that the precise amount of sales load 
assessed depends on, among other things, the degree to which a Policy 
owner exercises the premium and other flexibility features of the 
Policy. The exercise of these features is within the sole control of 
the Policy owner. Applicants note that in amending Rule 6e-3(T), the 
Commission specifically indicated that sales charge policies underlying 
the stair-step requirement are not contravened by fluctuations in sales 
load which result from factors beyond the issuer's control. Applicants 
submit that this principle should be equally applicable in the present 
context.

G. Request for Exemptions Relating To Custodianship Arrangements

    1. In pertinent part, sections 26(a)(1) and (a)(2) of the 1940 Act 
prohibit Applicants from selling the Policy unless it is issued 
pursuant to a trust indenture or other such instrument that designates 
one or more trustees or custodians, qualified as specified, to have 
possession of all securities in which each insurer and the applicable 
Variable Account invest.
    2. In pertinent part, section 27(c)(2) of the 1940 Act may be read 
to prohibit Applicants from selling the Policy unless the proceeds of 
all purchase payments are deposited with a trustee or custodian as 
specified.
    3. Rule 6e-2(b)(13)(iii) under the 1940 Act affords an exemption 
from sections 26(a)(1), 26(a)(2), and 27(c)(2), provided that each 
insurer complies, to the extent applicable, with all other provisions 
of section 26 as if it were a trustee or custodian for the Variable 
Account, and assuming that each insurer meets the other requirements 
set forth in the rule.
    4. Applicants represent that the holding of Fund shares by each 
insurer and each Variable Account under an open account arrangement, 
without having possession of share certificates and without a trust 
indenture or other such instrument, may be deemed inconsistent with the 
foregoing provisions. Accordingly, Applicants request exemptions from 
those provisions, to the extent necessary.
    5. Applicants represent that current industry practice calls for 
unit investment trust separate accounts, such as the Variable Accounts, 
to hold shares of management investment companies in uncertificated 
form. Applicants further represent that holding shares of underlying 
management investment companies in uncertificated form contributes to 
efficiency in the purchase and sale of such shares by separate accounts 
and generally saves costs.
    6. Applicants note that, in contrast to the Policy (which is 
covered by Rule 6e-2), policies covered by Rule 6e-3(T) may rely on 
Rules 6e-3(T)(b)(13)(iii) (B) and (C) which, in effect, afford the 
exemptions requested here by the Applicants. The Commission has 
proposed amendments to Rule 6e-2(b)(13)(iii) to permit life insurers 
(such as the insurers) to hold the assets of a separate account without 
a trust indenture or other such instrument, and to permit a separate 
account organized as a unit investment trust (such as the Variable 
Accounts) to hold the securities of any registered investment company 
(such as the Fund) that offers its shares to the separate account in 
uncertificated form. Applicants also note that the Commission has 
adopted Rule 26a-2 which affords exemptions in connection with variable 
annuity separate accounts that are essentially similar to those 
requested here. Accordingly, Applicants presume that the Commission 
adopted or proposed the foregoing exemptive rules based on a 
determination that, where state insurance law protects separate account 
assets and open account arrangements foster administrative efficiency 
and cost savings, safekeeping of separate account assets does not 
necessarily depend on the presence of a trustee, custodian or trust 
indenture, or the issuance of share certificates.
    7. Each insurer represents that: it will comply with all other 
applicable provisions of section 26 as if it were a trustee or 
custodian for its Variable Account (subject to the other exemptive 
relief requested in the application); it will file with the insurance 
regulatory authority of Massachusetts an annual statement of its 
financial condition in the form prescribed by the National Association 
of Insurance Commissioners--the most recent such statement indicated 
that each insurer has a combined capital and surplus of at least 
$1,000,000; it is examined from time to time by the insurance 
regulatory authority of Massachusetts as to its financial condition and 
other affairs; and it is subject to supervision and inspection with 
respect to its separate account operations.

H. Request for Exemption Relating To ``Free Look'' Right

    1. Section 27(f) of the 1940 Act provides that periodic payment 
plan certificate holders may, within a specified time period, surrender 
their certificates and receive the account value plus all deductions 
from gross purchase payments; Rule 27f-1 provides for notices in 
connection therewith.
    2. Rule 6e-2(b)(13)(viii) provides an exemption from section 27(f) 
and Rule 27f-1, provided that the Policy owner has the right to:
    (i) Return the Policy no later than 45 days after execution of the 
application for the Policy or, if later, within 10 days after receipt 
of the Policy or the notice of right of withdrawal by the owner; and
    (ii) Receive a refund of all payments made thereunder.
    3. Each insurer intends generally to comply with Rule 6e-
2(b)(13)(viii), but anticipates that under the laws of some states, it 
may now or in the future be required to credit investment losses and 
gains during the ``free look'' period to Policy owners who exercise 
their ``free look'' right.
    4. Applicants assert that section 27(f) presumes that the security 
owner will bear any investment gains and losses during the ``free 
look'' period, and that Rule 6e-3(T)(b)(13)(viii) would permit each 
insurer's proposed ``free look'' procedures for a policy relying on 
that Rule. Applicants also note that no state laws required return of 
account value pursuant to ``free look'' procedures at the time Rule 6e-
2 was adopted, and that under the policy designs prevalent at time, the 
amount of investment depreciation or appreciation during the ``free 
look'' period was not likely to be great because premiums in excess of 
scheduled premiums were not permitted to be paid, and relatively large 
front-end charges reduced the amount initially allocated to the 
separate account. For these reasons, and because no state laws required 
``free look'' right procedures when Rule 6e-2 was adopted, Applicants 
do not regard as particularly significant the failure of Rule 6e-
2(b)(13)(viii) to authorize such ``free look'' procedures.
    5. Applicants request an exemption from section 27(f) and Rules 
27f-1 and 6e-2(b)(13)(viii) to the extent necessary to permit the 
``free look'' procedures the insurers have prescribed for the Policies.

Conclusion

    Applicants assert that, for the reasons set forth above, the 
requested exemptions from (i) those provisions of the 1940 Act and 
those rules specified in paragraph (b) of Rule 6e-2 thereunder, other 
than sections 7 and 8(a), as well as (ii) sections 2(a)(32), 2(a)(35), 
22(c), 26(a)(1), 26(a)(2), 27(a)(1), 27(a)(3), 27(c)(1), 27(c)(2), 
27(d) and 27(f), and Rules 63-2 (b)(1), (b)(12), (b)(13)(i), 
(b)(13)(ii), (b)(13)(iii), (b)(13)(iv), (b)(13)(v), (b)(13)(viii), 
(c)(1) and (c)(4), 22c-1, and 27f-1, meet the standards of section 6(c) 
of the 1940 Act. The requested exemptions 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 
1940 Act.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 94-11034 Filed 5-6-94; 8:45 am]
BILLING CODE 8010-01-M