[Federal Register Volume 64, Number 141 (Friday, July 23, 1999)]
[Notices]
[Pages 40052-40054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18777]


=======================================================================
-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Rel. No. IC-23904; 812-11550 ]


Colchester Street Trust, et al., Notice of Application

July 16, 1999.
AGENCY: Securities and Exchange Commission (``SEC'' or ``Commission'').

ACTION: Notice of application for an order under sections 6(c), 
12(d)(1)(J) and 17(b) of the Investment Company Act of 1940 (the 
``Act'') for exemptions from sections 12(d)(1) and 17(a) and under 
section 17(d) of the Act and rule 17d-1 under the Act to permit certain 
joint transactions.

-----------------------------------------------------------------------

    Summary of Application: Applicants seek an order that would amend a 
prior order (``Prior Order'') \1\ to permit certain registered 
investment companies and other entities (``Participating Funds'') to 
investment uninvested cash (``Uninvested Cash'') and cash collateral 
received in connection with a securities lending program (``Cash 
Collateral'') in shares of affiliated money market funds and/or short-
term bond funds (``Investment Funds'').
---------------------------------------------------------------------------

    \1\ Daily Money Fund, et al., Investment Company Act Release 
Nos. 22236 (Sept. 20, 1996) (notice) and 22285 (Oct. 16, 
1996)(order).
---------------------------------------------------------------------------

    Applicants: Colchester Street Trust, Fidelity Aberdeen Street 
Trust, Fidelity Advisor Korea Fund, Inc., Fidelity Advisor Emerging 
Asia Fund, Inc., Fidelity Advisor Series I, Fidelity Advisor Series II, 
Fidelity Advisor Series III, Fidelity Advisor Series IV, Fidelity 
Advisor Series V, Fidelity Advisor Series VI, Fidelity Advisor Series 
VII, Fidelity Advisor Series VIII, Fidelity Beacon Street Fund, 
Fidelity Boston Street Trust, Fidelity California Municipal Trust, 
Fidelity California Municipal Trust II, Fidelity Capital Trust, 
Fidelity Charles Street Trust, Fidelity Commonwealth Trust, Fidelity 
Concord Street Trust, Fidelity Congress Street Fund, Fidelity 
Contrafund, Fidelity Court Street Trust, Fidelity Court Street Trust 
II, Fidelity Covington Trust, Fidelity Destiny Portfolios, Fidelity 
Devonshire Trust, Fidelity Exchange Fund, Fidelity Financial Trust, 
Fidelity Fixed-Income Trust, Fidelity Hastings Street Trust, Fidelity 
Hereford Street Trust, Fidelity Income Fund, Fidelity Investment Trust, 
Fidelity Magellan Fund, Fidelity Massachusetts Municipal Trust, 
Fidelity Money Market Trust, Fidelity Mt. Vernon Street Trust, Fidelity 
Municipal Trust, Fidelity Municipal Trust II, Fidelity New York 
Municipal Trust, Fidelity New York Municipal Trust II, Fidelity Oxford 
Street Trust, Fidelity Phillips Street Trust, Fidelity Puritan Trust, 
Fidelity Revere Street Trust, Fidelity School Street Trust, Fidelity 
Securities Fund, Fidelity Select Portfolios, Fidelity Summer Street 
Trust, Fidelity Trend Fund, Fidelity Union Street Trust, Fidelity Union 
Street Trust II, Fidelity U.S. Investment-Bond Fund, L.P., Fidelity 
Investments-Government Securities Fund, L.P., Newbury Street Trust, 
Variable Insurance Products Fund, Variable Insurance Products Fund II, 
Variable Insurance Products Fund III (collectively, the ``Trust''); 
Fidelity Advisor World Global High Income Fund (Bermuda) Ltd., Fidelity 
Advisor World U.S. Intermediate Bond Fund (Bermuda) Ltd., Fidelity 
Advisor World International Bond Fund (Bermuda) Ltd., Fidelity Advisor 
World U.S. Large-Cap Stock Fund (Bermuda) Ltd., Fidelity Advisor World 
Europe Fund (Bermuda) Ltd., Fidelity Advisor World Southeast Asia Fund 
(Bermuda) Ltd., Fidelity Advisor World U.S. Treasury Money Fund 
(Bermuda) Ltd. (collectively, the ``World Funds''), Fidelity Management 
& Research Company (``FMR''); Fidelity Group Trust for Employee Benefit 
Plans (``Group Trust'')' Fidelity Management Trust Company (``FMTC''); 
Fidelity Service Company, Inc. (``FSC''); Fidelity Investments 
Institutional Operations Company, Inc. (``FIIOC''); Fidelity 
Investments Money Management, Inc. (``FIMM''); all other registered 
investment companies and series thereof that are advised by FMR or a 
person controlling, controlled by, or under common control with FMR 
(collectively, the ``Adviser'') and all other registered investment 
companies and series thereof for which the Adviser in the future acts 
as investment adviser (collectively, the ``Registered Funds''); the 
World Funds, and other pooled investment funds advised or in the future 
advised by the Adviser, or a person controlling, controlled by, or 
under common control with the Adviser, offered exclusively outside the 
United States to non-U.S. residents (the ``Off-Shore Funds''); state 
and local entities or accounts thereof advised or in the future advised 
by the Adviser that are exempt from regulation under the Act pursuant 
to section 2(b) of the Act (the ``2(b) Entities''); collective trust 
funds of the Group Trust, the trustee for which, or in the future the 
trustee for which, is FMTC, that are excepted from the definition of 
investment company by section 3(c)(11) of the Act (the ``3(c)(11) 
Entities''); and individual institutional accounts advised by the 
Adviser (``Institutional Accounts'').\2\
---------------------------------------------------------------------------

    \2\ All existing entities that currently intend to rely on the 
requested order are named as applicants. Any other existing entity 
and future entity will rely on the requested order only in 
accordance with the terms and conditions of the application.
---------------------------------------------------------------------------

    Filing Dates: The application was filed on March 26, 1999. 
Applicants have agreed to file an amendment, the substance of which is 
reflected in this notice, period.
    Hearing or Notification of Hearing: An order granting the 
application will be issued unless the SEC orders a hearing. Interested 
person may request a hearing by writing to the SEC's Secretary and 
serving applicants with a copy of the request, personally or by mail. 
Hearing requests should be received by the SEC by 5:30 p.m. on August 
10, 1999, 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 
SEC's Secretary.

ADDRESSES: Secretary, SEC, 450 Fifth Street, NW, Washington, DC 20549-
0609. Applicants, 82 Devonshire Street, Boston, Massachusetts 02109.

FOR FURTHER INFORMATION CONTACT: Elaine M. Boggs, Senior Counsel, at 
(202) 942-0572, or Nadya B. Roytblat, Assistant Director, at (202) 942-
0564 (Division of Investment Management, Office of Investment Company 
Regulation).

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application may be obtained for a fee at the 
SEC's Public Reference Branch, 450 5th Street, NW, Washington, DC 
20549-0102 (tel. (202) 942-8090).

Applicants' Representations

    1. Each of the Registered Funds is registered under the Act and 
most of the Trusts are series companies. The Participating Funds 
include the Registered Funds (``Participating Registered Funds''), Off-
Shore Funds, 2(b) Entities, 3(c)(11) Entities, and Institutional 
Accounts. The current Off-Shore Funds are established under the

[[Page 40053]]

laws of Bermuda. Each 3(c)(11) Entity is organized as a separate pooled 
account under the Fidelity Group Trust, for which FMTC acts as trustee. 
FMR, an investment adivser registered under the Investment Advisers Act 
of 1940, acts as each Participating Fund's investment manager and 
provides the Participating Funds with administrative services.
    2. Certain of the Investment Funds (the ``Central Funds'') are 
series of Fidelity Revere Street Trust, an open-end management 
investment company registered under the Act. The Central Funds have not 
registered their shares under the Securities Act of 1933 (``Securities 
Act''). Shares of the Central Funds will be sold only to the 
Participating Funds. FIMM, a wholly-owned subsidiary of FMR, serves as 
investment adviser to the Central Funds. The other Investment Funds are 
open-end management investment companies registered under the Act, and 
their shares are registered under the Securities Act. These Investment 
Funds are advised by FMR. All Investment Funds will be taxable or tax-
exempt money market funds or short-term bond funds with a portfolio 
maturity of three years or less.
    3. Approximately 45 Registered Funds participate in a securities 
lending program in which they earn additional income by lending their 
portfolio securities. Cash Collateral received by the Registered Funds 
may be invested in shares of investment companies approved by the board 
of trustees of the Registered Fund and that have investment objectives 
that are consistent with the investment restrictions and guidelines of 
the Registered Fund.
    4. The Prior Order permits Participating Funds to invest cash that 
has otherwise not been invested in portfolio securities in the Central 
Funds. In addition, the Prior Order permits the Participating Funds and 
the Central Funds to engage in interfund purchase and sale transactions 
in securities that would otherwise be effected in reliance on rule 17a-
7 under the Act (``Interfund Transactions'').
    5. Applicants request an order amending the Prior Order to permit 
the Participating Funds to invest Cash Collateral and Uninvested Cash 
in other Investment Funds in addition to the Central Funds. The 
requested relief would permit (a) the Participating Funds to use Cash 
Collateral and Uninvested Cash to purchase shares of the Investment 
Funds; (b) the Investment Funds to sell their shares to the 
Participating Funds; (c) the Investment Funds to redeem their shares 
from the Participating Funds; and (d) the Adviser to effect these 
purchases and sales (collectively, these transactions are the ``Cash 
Transactions'').
    6. The board of trustees of the Participating Registered Funds has 
or will approve the Investment Funds as vehicles for the investment of 
Cash Collateral and Uninvested Cash. The investment by each 
Participating Registered Fund in shares of the Investment Funds will be 
in accordance with that Registered Fund's investment policies and 
restrictions as set forth in its registration statement. A 
Participating Registered Fund that is a money market fund will not 
invest its Uninvested Cash or Cash Collateral in an Investment Fund 
that does not comply with the requirements of rule 2a-7 under the Act.

Applicants' Legal Analysis

A. Section 12(d)(1)

    1. Section 12(d)(1)(A) of the Act provides, in relevant part, that 
no investment company may acquire securities of a registered investment 
company if such securities represent more than 3% of the acquired 
company's outstanding voting stock, more than 5% of the acquiring 
company's total assets, or if such securities, together with the 
securities of other acquired investment companies, represent more than 
10% of the acquiring company's outstanding total assets. Section 
12(d)(1)(B) of the Act provides that no registered open-end investment 
company may sell its securities to another investment company if the 
sale will cause the acquiring company to own more than 3% of the 
acquired company's voting stock, or if the sale will cause more than 
10% of the acquired company's voting stock to be owned by the 
investment company. Applicants state that the investment of Uninvested 
Cash and Cash Collateral by the Registered Funds and Off-Shore Funds in 
shares of the Investment Funds is subject to the limits in sections 
12(d)(1)(A) and (B).
    2. Section 12(d)(1)(J) of the Act provides that the Commission may 
exempt any person, security, or transaction from any provision of 
section 12(d)(1) if and to the extent that such exemption is consistent 
with the public interest and the protection of investors. Applicants 
request relief under section 12(d)(1)(J) to permit the Registered Funds 
and the Off-Shore Funds to invest in the Investment Funds in excess of 
the limits in sections 12(d)(1)(A) and (B).
    3. Applicants state that the proposed arrangement will not result 
in the abuses that sections 12(d)(1)(A) and (B) were intended to 
prevent. Applicants state that the proposed arrangement will not result 
in inappropriate layering of either sales charges or investment 
advisory fees. Shares of the Investment Funds sold to the Participating 
Funds will not be subject to a sales load, redemption fee, asset-based 
distribution fee or service fee. Applicants state that since investment 
advisory fees are calculated on the net, rather than the total, assets 
of the Participating Registered Funds, and since Cash Collateral does 
not increase net assets, the Participating Registered Funds would not 
pay duplicative advisory fees with respect to investments made with 
Cash Collateral. Applicants further state advisory fees with respect to 
an investment of Uninvested Cash will be subject to condition 2 below. 
Applicants also state that because each Participating Fund will invest 
in an Investment Fund on the same basis as each other Participating 
Fund, there is no risk that the Adviser would exercise undue influence 
to advantage any Participating Funds to the detriment of others.

B. Section 17(a)

    1. Section 17(a) of the Act makes it unlawful for any affiliated 
person of a registered investment company, or any affiliated person of 
such affiliated person, acting as principal, to sell or purchase any 
security to or from such investment company. Section 2(a)(3) of the Act 
defines an affiliated person to include any person directly or 
indirectly controlling, controlled by, or under common control with, 
the other person or the investment adviser to an investment company. 
The Adviser is an affiliated person of each Registered Fund under 
section 2(a)(3). Because the Participating Funds either share a common 
investment adviser or have an investment adviser that is under common 
control with the investment adviser to another Participating Fund, and 
most Registered Funds also share a common board of trustees, the 
Participating Funds may be deemed to be under ``common control'' and 
therefore affiliated persons of each other. As a result, applicants 
state that section 17(a) would prohibit the Cash Transactions.
    2. Section 17(b) of the Act authorizes the SEC to exempt a 
transaction from section 17(a) if the term of the proposed transaction, 
including the consideration to be paid or received, are reasonable and 
fair and do not involve overreaching on the part of any person 
concerned, the proposed transaction is consistent with the policy of 
each registered investment company

[[Page 40054]]

concerned, and the proposed transaction is consistent with the general 
policy of the Act. Section 6(c) under the Act permits the SEC to exempt 
any person or transaction from any provision of the Act, if such 
exemption is necessary or appropriate in the public interest and 
consistent with the protection of investors and the purposes fairly 
intended by the policies of the Act.
    3. Applicants submit that the requested relief satisfies the 
standards for relief in sections 6(c) and 17(b). Applicants state that 
the Cash Transactions will provide the Participating Funds and their 
shareholders with a means of obtaining high current rates of return on 
Cash Collateral and Uninvested Cash, reducing aggregate counterparty 
exposure on repurchase agreements, protecting liquidity, reducing 
credit exposure to custodian banks, reducing transaction costs, and 
diversifying risk. In addition, applicants state that the Cash 
Transactions will be effected in accordance with each Participating 
Fund's investment restrictions and will be consistent with each 
Participating Registered Fund's policies as set forth in its 
registration statement.

C. Section 17(d) and Rule 17d-1

    1. Section 17(d) of the Act and rule 17d-1 under the Act prohibit 
any affiliated person of or principal underwriter for a registered 
investment company or any affiliated person of such person or principal 
underwriter, acting as principal, from effecting any transaction in 
connection with any joint enterprise or other joint arrangement or 
profit sharing plan, in which the investment company participates. As 
noted above, applicants are affiliated persons of each other. 
Applicants state that Cash Transactions may be deemed a joint 
enterprise for the purposes of section 17(d) and rule 17d-1.
    2. Rule 17d-1 permits the SEC to approve a proposed joint 
transaction covered by the terms of section 17(d). In determining 
whether to approve a transaction, the SEC is to consider whether the 
proposed transaction is consistent with the provisions, policies, and 
purposes of the Act, and the extent to which the participation of the 
investment companies is on a basis different from or less advantageous 
than that of the other participants. Applicants state that investments 
by the Participating Registered Funds in the Investment Funds will be 
on the same basis as other participants.

Applicants' Conditions

    Applicants agree that any order of the SEC granting the requested 
relief will be subject to the following conditions:
    1. The shares of the Investment Funds that are sold to and redeemed 
from the Registered Funds will not be subject to a sales load, 
redemption fee, distribution fee under a plan adopted in accordance 
with rule 12b-1, or service fee (as defined in rule 2830(b)(9) of the 
National Association of Securities Dealers' Rules of Conduct).
    2. If the Adviser to an Investment Fund collects a fee from the 
Investment Fund for acting as its investment adviser, and unless the 
fee payable to the Adviser for acting as the adviser of the Registered 
Fund is reduced by the amount of such other fee paid with respect to 
the investment of the Registered Fund's Uninvested Cash, before the 
next meeting of the board of trustees of a Registered Fund (``Board'') 
that invests in the Investment Fund is held for the purpose of voting 
on an advisory contract under section 15 of the Act, the Adviser to the 
Registered Fund will provide the board with specific information 
regarding the approximate cost to the Adviser for managing the 
Uninvested Cash that can be expected to be invested in such Investment 
Fund. Before approving any advisory contract under section 15, the 
Board, including a majority of the trustees who are not ``interested 
persons,'' as defined in section 2(a)(19) of the Act, shall consider to 
what extent, if any, the advisory fees charged to the Registered Fund 
by the Adviser should be reduced to account for the fee indirectly paid 
by the Registered Fund because of the advisory fee paid by the 
Investment Fund, to the extent that the latter fee is not credited 
against the advisory fee payable by the Registered Fund. The minute 
books of the Registered Fund will record fully the Board's 
consideration in approving the advisory contract, including the 
considerations relating to fees referred to above.
    3. Each Participating Fund, each Investment Fund, and any future 
fund that may rely on the order shall be advised by or, in the case of 
a 3(c)(11) Entity, shall have as its trustee, FMR or a person 
controlling, controlled by, or under common control with FMR.
    4. Investment in shares of the Investment Funds will be in 
accordance with each Registered Fund's respective investment 
restrictions and will be consistent with each Registered Fund's 
policies as set forth in its prospectus and statement of additional 
information.
    5. No Investment Fund in which a Registered Fund invests shall 
acquire securities of any other investment company in excess of the 
limits contained in section 12(d)(1)(A) of the Act, except as permitted 
by a Commission order concerning an interfund lending and borrowing 
facility.
    6. Each of the Registered Funds will invest Uninvested Cash in, and 
hold shares of, the Investment Funds only to the extent that a 
Registered Fund's aggregate investment of Uninvested Cash in the 
Investment Funds at the time the investment is made does not exceed 25% 
of the Registered Fund's total net assets. For purposes of this 
limitation, each Registered Fund or series thereof will be treated as a 
separate investment company.
    7. To engage in Interfund Transactions, the Participating Funds 
will comply with rule 17a-7 under the Act in all respects other than 
the requirement that the parties to the transaction be affiliated 
persons (or affiliated persons of affiliated persons) of each other 
solely by reason of having a common investment adviser or investment 
advisers which are affiliated persons of each other, common officers, 
and/or common directors.
    8. A Registered Fund that is a money market fund will not invest 
its Uninvested Cash or Cash Collateral in an Investment Fund that does 
not comply with the requirements of rule 2a-7 under the Act.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 99-18777 Filed 7-22-99; 8:45 am]
BILLING CODE 8010-01-M