[Federal Register Volume 65, Number 167 (Monday, August 28, 2000)]
[Notices]
[Pages 52150-52154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-21843]


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SECURITIES AND EXCHANGE COMMISSION

[Rel. No. IC-24603; File No. 812-12118]


The Equitable Life Assurance Society of the United States, et al.

August 21, 2000.
AGENCY: The Securities and Exchange Commission (``Commission'').

ACTION:  Notice of application for an order pursuant to section 26(b) 
of the Investment Company Act of 1940 (``1940 Act'') approving certain 
substitutions of securities, and pursuant to Section 17(b) of the 1940 
Act exempting related transaction from section 17(a) of the 1940 Act.

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    Summary of Application: Applicants request an order to permit 
certain registered unit investment trusts to substitute securities 
issued by the EQ Advisors Trust's (``EQ Trust'') Alliance Equity Index 
Portfolio (``Alliance Portfolio'') for securities issued by the EQ 
Trust's BT Equity 500 Index Portfolio (``BT Portfolio''), currently 
held by those unit investment trusts, and to permit certain in-kind 
redemptions of portfolio securities in connection with the substitution 
(``In-Kind Transaction'') and the consolidation of certain subaccounts 
by certain of those unit investment trust following the substitution.
    Applicants: The Equitable Life Assurance Society of the United 
States (``Equitable''), Separate Account No. 301 of Equitable (``SA 
301''), Separate Account No. 45 of Equitable (``SA 45''), Separate 
Account No. 49 of Equitable (``SA 49''), and Separate Account FP of 
Equitable (``SA FP,'' and together with SA 301, SA 45, and SA 49, the 
``Equitable Accounts'').
    Filing Date: The application was filed on May 25, 2000. Applicants 
represent that they will file an amended application during the notice 
period to conform to the representations set forth herein.
    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 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 September 15, 2000, 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

[[Page 52151]]

the issues contested. Persons may request notification of a hearing by 
writing to the Secretary of the Commission.

ADDRESSES: Secretary, Securities and Exchange Commission, 450 Fifth 
Street, N.W., Washington, D.C. 20549-0609. Applicants: c/o Peter D. 
Noris, Executive Vice President and Chief Investment Officer, The 
Equitable Life Assurance Society of the United States, 1290 Avenue of 
the Americas, New York, New York 10104.

FOR FURTHER INFORMATION CONTACT: Jane G. Heinrichs, Senior Counsel, at 
(202) 942-0696, or Keith E. Carpenter, Branch Chief, at (202) 942-0679, 
Office of Insurance Products, Division of Investment Management.

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application; the complete application may be obtained for a fee from 
the Public Reference Branch of the Commission, 450 5th Street, N.W., 
Washington, D.C. 20549-0102 (tel. (202) 942-8090).

Applicants' Representations

    1. Equitable is a New York stock life insurance company authorized 
to sell life insurance and annuities in all fifty states, the District 
of Columbia, Puerto Rico, and the Virgin Islands. Equitable is the 
depositor and sponsor of SA 301, SA 45, SA 49 and SA FP, each a 
separate investment account established under New York law.
    2. Equitable is a wholly owned subsidiary of AXA Financial, Inc., a 
member of the global AXA Group, which is a holding company for an 
international group of insurance and related financial services 
companies.
    3. Each of the Equitable Accounts is registered with the Commission 
under the 1940 Act as a unit investment trust. The assets of the 
Equitable Accounts support certain variable annuity contracts and 
variable life insurance policies (collectively, ``Contracts''). The 
variable annuity contracts issued by the Applicant include flexible 
premium deferred variable annuity contracts and single premium 
immediate variable annuity contacts. Some of the variable annuity 
contracts are issued as group contracts, while the remaining annuity 
contracts are issued to or on behalf of individuals. The variable life 
insurance policies issued by the Applicants include individual flexible 
premium, individual modified single premium and second to die variable 
life insurance contracts.
    4. EQ Advisors Trust (``EQ Trust'') is organized as a Delaware 
business trust. It is registered as an open-end management investment 
company under the 1940 Act and its shares are registered under the 1933 
Act on Form N-1A. EQ Trust is a series investment company, as defined 
by Rule 18f-2 under the 1940 Act, and currently offers 41 separate 
portfolios of shares. EQ Trust sells shares to the Equitable Accounts 
in connection with the Contracts. EQ Trust currently offers two classes 
of shares, Class IA and Class IB shares, which differ only in that 
Class IB shares are subject to a distribution plan adopted and 
administered pursuant to Rule 12b-1 under the 1940 Act.
    5. Equitable currently serves as investment manager (``Manager'') 
of each of the 41 current portfolios of EQ Trust pursuant to an 
investment management agreement between EQ Trust and Equitable. 
Pursuant to the investment management agreement, the Manager is 
responsible for the overall supervisory responsibility for the general 
management of EQ Trust, including selecting the investment advisers for 
each of EQ Trust's portfolios. Alliance Capital Management L.P. 
(``Alliance'') is the adviser for the Alliance Portfolio and Bankers 
Trust Company (``BT'') is the adviser for the BT Portfolio.
    6. EQ Trust has received an exemptive order from the Commission 
(``Multi-Manager Order'') that permits the Manager, or any entity 
controlling, controlled by, or under common control (within the meaning 
of section 2(a)(9) of the 1940 Act) with the Manager, subject to 
certain conditions, including approval of the Board of Trustees of EQ 
Trust, and without the approval of shareholders to: (i) Select a new or 
additional investment advisers for each Portfolio; (ii) enter into new 
Advisory Agreements and/or materially modify the terms of any existing 
Advisory Agreement; \1\ (iii) terminate any existing Adviser and 
replace the Adviser; and (iv) continue the employment of an existing 
Adviser on the same contract terms where the Advisory Agreement has 
been assigned because of a change of control of the Adviser,\2\ In such 
circumstances, Contract owners would receive notice of any such action, 
including all information concerning any new Adviser or Advisory 
Agreement that normally is provided in proxy materials.
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    \1\ The Manager will not enter into an Advisory Agreement with 
an Adviser that is an ``affiliated person'' (as defined in section 
2(a)(3) of the 1940 Act) of the Portfolio or the Manager, other than 
by reason of serving as an Adviser to a Portfolio, without the 
Advisory Agreement, including the compensation to be paid 
thereunder, being approved by the shareholders of the applicable 
Portfolio (or, if the Portfolio serves as a funding medium for any 
sub-account of a registered separate account, then pursuant to 
voting instructions by the unit holders of the sub-account).
    \2\ See EQ Advisors Trust and EQ Financial Consultants, Inc., 
Investment Company Act Rel. Nos. 23128 (April 24, 1998) (order) and 
23093 (March 30, 1998) (notice). An investment company that has 
received such an order is commonly referred to as a ``multi-
manager'' investment company.
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    7. Applicants assert that each of the Contracts expressly reserve 
Equitable's right, subject to compliance with applicable law, to 
substitute shares of another open-end management investment company for 
shares of an open-end management investment company held by a sub-
account. In addition, the prospectuses describing the Contracts contain 
appropriate disclosure of this right.
    8. Applicants propose to substitute Class IB Shares of the Alliance 
Portfolio for Class IB Shares of the BT Portfolio 
(``Substitution'').\3\ The Applicants represent that the Substitution 
is part of a continuing and overall business plan by Equitable to make 
the Contracts more competitive and attractive to potential customers 
and Contract owners. The Applicants assert that the Substitution will 
benefit Contract owners by: (a) Facilitating Contract owner 
understanding of the underlying investment options for the Contracts 
and reducing the potential for Contract owners to be confused by two 
separate underlying investment options (i.e., the Alliance Portfolio 
and the BT Portfolio), both of which attempt to replicate the 
performance of the Standard & Poor's 500 Composite Stock Price Index 
(``S&P 500'') and have substantially similar investment strategies and 
anticipated risks; (b) consolidating the assets attributable to the 
Alliance Portfolio and the BT Portfolio in a single portfolio, thereby 
eliminating duplicative Portfolios, which may make the Contracts more 
efficient to administer and may provide economies of scale that could 
benefit Contract owners; and (c) providing Contract owners who have 
their Contract values currently allocated to the BT Portfolio with a 
Portfolio that has the same investment management fees and expenses as 
the BT Portfolio but lower total expense ratios than the BT Portfolio.
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    \3\ The BT Portfolio does not have any Class IA shares issued 
and outstanding.
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    9. As demonstrated in the chart below, the Applicants represent 
that the Alliance Portfolio has, and will continue to have, investment 
objectives, investment strategies and anticipated risk that are 
substantially similar in all material respects to those of the BT 
Portfolio:

[[Page 52152]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
    Current  portfolio                         Investment objective                           New portfolio                Investment objective
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BT Portfolio               Seeks to replicate as closely as possible (before deduction  Alliance Portfolio        Seeks a total return before expenses
                            of Portfolio expenses) the total return of the S&P 500                                 that approximates the total return
                            Index                                                                                  performance of the S&P 500 Index,
                                                                                                                   including reinvestment of dividends,
                                                                                                                   at a risk level consistent with that
                                                                                                                   of the S&P 500 Index.
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    10. As demonstration in the chart below, it is also expected that: 
(a) The investment management fees (i.e., the total management fees 
paid to the Manager \4\ with respect to the Alliance Portfolio will be 
the same as the investment management fees with respect to the BT 
Portfolio; and (b) the total expense ratio of the Alliance Portfolio 
will be less than the total expense ratio of the BT Portfolio. The 
chart below shows the estimated management fees and total expense of 
Class IB shares of the BT Portfolio and the Alliance Portfolio as if 
the current Management agreement has been in effect for the year ended 
December 31, 1999.\5\
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    \4\ The investment advisory fees are paid to each Adviser by the 
Manager from its investment management fees.
    \5\ Estimated management fees and total expenses of Class IB 
shares of the Alliance Portfolio and the BT Portfolio are presented 
on a pro forma basis and are based upon the audited financial 
statements of EQ Trust for the year ended December 31, 1999. The 
current management agreement, which became effective on May 1, 2000, 
reduced the management fee of the Alliance Portfolio from 0.30% of 
average daily net assets to 0.25% of average daily net assets. The 
management fee of the BT Portfolio remained unchanged.

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                                                                Advisory fees                     Total expenses
                                                                (as percentage                    (as percentage
                          Portfolio                               of average       12b-1 fees       of average
                                                                  daily net        (percent)        daily net
                                                                   assets)                           assets)
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Alliance Portfolio...........................................            0.25            0.25%             0.54
BT Portfolio \6\.............................................            0.25            0.25%             0.68
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    11. Applicants state that they have provided their respective 
Contract owners and participants with disclosure of the Substitution 
through prospectuses or prospectus supplements, as appropriate. Such 
disclosure described the alliance Portfolio and the BT Portfolio and 
disclosed the impact of the Substitution on fees and expenses at the 
underlying fund level. If the Commission approves the application, 
existing Contract owners and participants will be sent, on or about the 
date of approval, a supplement to the relevant Contract prospectus that 
discloses to such Contract owners and participants that the application 
has been approved. Together with this disclosure, such existing 
Contract owners and participants who have not previously received a 
prospectus for the Alliance Portfolio will be send a prospectus and/or 
supplement containing disclosure that the Commission has issued an 
order approving the Substitution, as well as a prospectus for the 
Alliance Portfolio. The Contract prospectus and/or supplement and the 
prospectus for the EQ Trust, including the Alliance Portfolio, will be 
delivered to purchasers of new Contracts in accordance with all 
applicable legal requirements.
    12. Applicants also state that Contract owners and participants 
will be sent a notice of the Substitution. All such notices will be 
mailed to affected Contract owners and participants before the date the 
Substitution is effected (``Substitution Date''). The notice will 
inform Contract owners and participants that the Substitution will be 
effected on the Substitution Date and that they may transfer assets 
from the BT Portfolio to another investment option available under 
their Contract without the imposition of any fee, charge, or other 
penalty that might otherwise be imposed through a date at least thirty 
(30) days following the Substitution Date. Confirmation of the 
Substitution will be mailed to affected Contract owners and 
participants within five (5) days after the Substitution Date.
    13. Applicants asset that the significant terms of the Substitution 
described above include:
    a. The Alliance Portfolio will have investment objectives, 
investment strategies, and anticipated risks that are substantially 
similar in all material respects, to those of the BT Portfolio.
    b. The fees and expenses of the Alliance Portfolio will be the same 
as or less than those of the BT Portfolio, assuming that the assets of 
the Alliance Portfolio do not decrease significantly from its present 
asset levels.
    c. Contract owners and participants may transfer assets from the 
Alliance Portfolio or the BT Portfolio to another investment option 
available under their Contract without the imposition of any fee, 
charge, or other penalty that might otherwise be imposed from the date 
of the initial notice through a date at least thirty (30) days 
following the Substitution Date.
    d. The Substitution will be effected at the net asset value of the 
respective shares of the BT Portfolio and the Alliance Portfolio in 
conformity with Section 22(c) of the 1940 Act and Rule 22c-1 
thereunder, without the imposition of any transfer or similar charge by 
Applicants, and with no change in the amount of any Contract owner's or 
participant's Contract value or in the dollar value of his or her 
investment in such Contract.
    e. Contract owners and participants will not incur any fees or 
charges as a result of the Substitution, nor will their rights or 
Equitable's obligations under the Contracts be altered in any way. 
Equitable will bear all expenses incurred in connection with the 
Substitution and related filings and notices, including legal, 
accounting and other fees and expenses. The Substitution will not cause 
the Contract fees and charges currently being paid by existing Contract 
owners to be greater after the Substitution than before the 
Substitution.
    f. The Substitution will be effected by redeeming the shares of the 
BT Portfolio in-kind. Those assets will then be contributed in-kind to 
the Alliance Portfolio to purchase its shares. Redemptions in-kind and 
contributions in-kind will be done in a manner consistent with the 
investment

[[Page 52153]]

objectives, policies and diversification requirements of the BT 
Portfolio and the Alliance Portfolio, and the Manager will review the 
In-Kind Transaction to assure that the assets are suitable for the 
Alliance Portfolio. Consistent with Rule 17a-7(d) under the 1940 Act, 
no brokerage commissions, fees (except customary transfer fees) or 
other remuneration will be paid in connection with the In-Kind 
Transaction.
    g. The Substitution will not be counted as a new investment 
selection in determining the limit, if any, on the total number of 
Portfolios that Contract owners and participants can select during the 
life of a Contract.
    h. The Substitution will not alter in any way the annuity or life 
benefits, tax benefits or any contractual obligations of Applicants 
under the Contracts.
    i. Contract owners and participants may withdraw amounts under the 
Contracts or terminate their interest in a Contract, under the 
conditions that currently exist, including payment of any applicable 
withdrawal or surrender charge.
    j. Contract owners and participants affected by the Substitution 
will be sent written confirmation of the Substitution that identify the 
substitutions made on behalf of that Contract owner or participant 
within five (5) days following the Substitution Date.
    14. Applicants state that they will not complete the Substitution 
unless all of the following conditions are met:
    a. The Commission will have issued an order approving the 
Substitution under Section 26(b) of the 1940 Act.
    b. The Commission will have issued an order exempting the in-kind 
transactions from the provisions of section 17(a) of the 1940 Act, to 
the extent necessary to carry out the Substitution as described herein.
    c. The amendments to the registration statements for the Contracts 
describing the substitution shall have become effective.
    d. Each Contract owner or participant will have been mailed initial 
disclosure of the Substitution and will have been mailed a prospectus 
for the Alliance Portfolio and an amended and/or supplemental 
prospectus for the applicable Contracts before the Substitution Date. 
In addition, in conjunction with this mailing, each Contract owner or 
participant will have been sent a notice that describes the terms of 
the Substitution and Contract owners' and participants' rights in 
connection with them.
    e. Applicants will have satisfied themselves, based on advice of 
counsel familiar with insurance laws, that the Contracts allow the 
substitution of portfolios as described therein under applicable 
insurance laws and under the various Contracts.
    f. Applicants will have complied with any regulatory requirements 
they believe are necessary to complete the transactions in each 
jurisdiction where the Contracts are qualified for sale.

Applicants' Legal Analysis and Conditions

    1. Section 26(b) of the 1940 Act provides that it shall be unlawful 
for any depositor or trustee of a registered unit investment trust 
holding the security of a single issuer to substitute another security 
for such security unless the Commission shall have approved such 
substitution; and the Commission shall issue an order approving such 
substitution if the evidence establishes that it is consistent with the 
protection of investors and the purposes fairly intended by the 
policies and provisions of the 1940 Act.
    2. Section 26(b) protects the expectation of investors that the 
unit investment trust will accumulate shares of a particular issuer and 
is intended to insure that unnecessary or burdensome sales loads, 
additional reinvestment costs or other charges will not be incurred due 
to unapproved substitutions of securities.
    3. Applicants submit that the Contracts expressly reserve to the 
Applicants the right, subject to compliance with applicable law, to 
substitute shares of Alliance Portfolio for shares of the BT Portfolio 
held by the Equitable Accounts. The Applicants assert that they have 
reserved this right of substitution both to protect themselves and 
their Contract owners in situations where either might be harmed or 
disadvantaged by events affecting the issuer of the securities held by 
an Equitable Account and to preserve the opportunity to replace such 
shares in situations where a substitution could benefit themselves and 
their Contract owners and participants.
    4. The applicants submit that the proposed substitutions meet the 
standards that the Commission and its staff generally have applied to 
other substitutions that have been approved. In addition, the 
Applicants contend that the Substitution is not the type of 
substitution that section 26(b) was designed to prevent. Unlike 
traditional unit investment trusts, the Contracts provide each Contract 
owner with the right to exercise his own judgment and transfer Contract 
values into any other available variable and/or fixed investment 
option. Additionally, the Substitution will not, in any manner, reduce 
the nature or quality of the available investment options. Contract 
owners who do not want their assets allocated to the Alliance Portfolio 
would be able to transfer assets to any one of the other sub accounts 
available under their Contract without charge until thirty days after 
the Substitution Date.
    5. Applicants assert that the Substitution will not result in any 
change in the amount of any Contract owner's or participant's Contract 
value or in the dollar value of his or her investment in such Contract, 
or the annuity or life benefits, tax benefits or any contractual 
obligation of the Applicants under the Contracts. Contract owners will 
not incur any fees, expenses or charges as a result of the proposed 
transactions. Furthermore, the proposed transactions will not result in 
any change to the Contract fees and charges currently being paid by 
existing Contract owners. The Applicants assert, therefore, that the 
Substitution will not result in the type of costly forced redemption 
that Section 26(b) was designed to prevent.
    6. Applicants assert that the Substitution will benefit Contract 
owners by: (1) Facilitating Contract owner understanding of the 
underlying investment options for the Contracts and reducing the 
potential for Contract owners to be confused by two separate underlying 
investment options (i.e., the Alliance Portfolio and the BT Portfolio), 
both of which attempt to replicate the performance of the S&P 500 and 
have substantially similar investment strategies and anticipated risks; 
(2) consolidating the assets attributable to the Alliance Portfolio and 
the BT Portfolio in a single portfolio, thereby eliminating duplicative 
Portfolios, which may make the Contracts more efficient to administer 
and may provide economies of scale that could benefit Contract owners; 
and (3) providing Contract owners who have their Contract values 
currently allocated to the BT Portfolio with a Portfolio that has the 
same investment management fees and expenses as the BT Portfolio but 
lower total expense ratios than the BT Portfolio.
    7. Section 17(a)(1) of the 1940 Act prohibits any affiliated person 
or an affiliate of an affiliated person, of a registered investment 
company, from selling any security or other property to such registered 
investment company. Section 17(a)(2) of the 1940 Act prohibits such 
affiliated persons from purchasing any security or other property from 
such registered investment company.
    8. Section 17(b) of the 1940 Act authorizes the Commission to issue 
an

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order exempting a transaction from section 17(a) if: (a) the terms of 
the proposed transaction are fair and reasonable and do not involve 
overreaching on the part of any person concerned; (b) the proposed 
transaction is consistent with the policy of each registered investment 
company concerned; and (c) the proposed transaction is consistent with 
the general purposes of the 1940 Act.
    9. Applicants request an order pursuant to section 17(b) of the 
1940 Act exempting them from the provisions of Section 17(a) to the 
extent necessary to permit them to: (a) carry out the In-Kind 
Transaction; and (b) consolidate each subaccount of SA FP and SA 45 
currently investing in the BT Portfolio with the corresponding 
subaccount of SA FP and SA 45, respectively, currently investing in the 
Alliance Portfolio (collectively, ``Consolidations'').
    10. Applicants assert that the In-Kind Transaction, including the 
consideration to be paid and received, is reasonable and fair and does 
not involve overreaching on the part of any person concerned. The In-
Kind Transaction will be effected at the respective net asset values of 
the BT Portfolio and the Alliance Portfolio, as determined in 
accordance with the procedures disclosed in the registration statement 
of EQ Trust and as required by Rule 22c-1 under the 1940 Act. The In-
Kind Transaction will not change the dollar value of any participant's 
or Contract owner's investment in any of the Equitable Accounts, the 
value of any Contract, the accumulation value or other value credited 
to any Contract, or the death benefit payable under any Contract. After 
the proposed In-Kind Transaction, the value of an Equitable Account's 
investment in the Alliance Portfolio will equal the value of its 
investment in the BT Portfolio before the In-Kind Transaction. 
Applicants also state that the transactions will conform substantially 
to the conditions of Rule 17a-7. To the extent that the In-Kind 
Transaction does not comply fully with the provisions of paragraphs (a) 
and (b) Rule 17a-7, Applicants assert that the terms of the In-Kind 
Transaction provide the same degree of protection to the participating 
companies and their shareholders as if the In-Kind Transaction 
satisfied all of the conditions enumerated in Rule 17a-7. Applicants 
also assert that the proposed In-Kind Transactions by Applicants do not 
involve overreaching on the part of any person concerned. Furthermore, 
Applicants represents that the proposed substitutions will be 
consistent with the policies of the BT Portfolio and Alliance 
Portfolio, as recited in EQ Trust's current registration statement.
    11. Applicants assert that the In-Kind Transaction is consistent 
with the general purposes of the 1940 Act and that the In-Kind 
Transaction does not present any of the conditions or abuses that the 
1940 Act was designed to prevent.
    12. Applicants assert that the terms of the Consolidations are 
reasonable and fair and do not involve overreaching. Combining the 
assets of the relevant subaccounts would have no impact on the Alliance 
Portfolio. The terms and conditions of the Consolidations would not 
affect the contract values of Contract owners and participants. The 
transfers would be made at the relative values of each subaccount. The 
aggregate Contract value of each affected Contract owner would be the 
same after the Consolidations as before the Consolidations. From the 
Contract owner's perspective, no dilution of, or increase in, their 
Contract value or annuity value would occur as a result of a 
Consolidation. The transfer would not result in any change in charges, 
costs, fees or expenses borne by Contract owners or participants. No 
charge would be assessed on the Consolidations.
    13. The purpose of each Consolidation is to consolidate into a 
single subaccount two basically identical separate subaccounts that 
fund the Contracts, and, after the Substitution, will invest in the 
same underlying portfolio. This aggregation would allow for 
administrative efficiencies and cost savings on Equitable's part 
because Equitable would save the administrative, compliance, 
accounting, and auditing expense associated with separate subaccounts.
    14. Applicants assert that the Consolidations are consistent with 
the general purposes of the 1940 Act and that the Consolidations do not 
present any of the conditions or abuses that the 1940 Act was designed 
to prevent.

Conclusion

    Applicants assert that, for the reasons summarized above, the 
Substitution is 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, 
pursuant to delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 00-21843 Filed 8-25-00; 8:45 am]
BILLING CODE 8010-01-M