TIAA-CREF Life Insurance Company, et al., 33003-33011 [2011-13995]

Download as PDF Federal Register / Vol. 76, No. 109 / Tuesday, June 7, 2011 / Notices emcdonald on DSK2BSOYB1PROD with NOTICES information is used to determine the size and frequency of installment payments. The beneficiary is made aware of the overpayment by letter and is offered a variety of methods for recovery. One response is requested of each respondent. Completion is voluntary. However, failure to provide requested information may result in a denial of the waiver request. Previous Requests for Comments: The RRB has already published the initial 60-day notice (76 FR 8384 on February 14, 2011) required by 44 U.S.C. 3506(c)(2). That request elicited no comments. Information Collection Request (ICR) Title: Financial Disclosure Statement. OMB Control Number: 3220–0127. Form(s) submitted: DR–423. Type of request: Extension without change of a currently approved collection. Affected public: Individuals or households. Abstract: Under the Railroad Retirement and the Railroad Unemployment Insurance Acts, the Railroad Retirement Board has authority to secure from an overpaid beneficiary a statement of the individual’s assets and liabilities if waiver of the overpayment is requested. Changes proposed: The RRB proposes no revisions to Form DR–423. The burden estimate for the ICR is as follows: Estimated Completion Time for Form DR–423 is estimated at 85 minutes. Estimated annual number of respondents: 1,200. Total annual responses: 1,200. Total annual reporting hours: 1,700. 2. Title and Purpose of information collection: Statement Regarding Contributions and Support of Children; OMB 3220–0195. Section 2(d)(4) of the Railroad Retirement Act (RRA), provides, in part, that a child is deemed dependent if the conditions set forth in Section 202(d)(3), (4), and (9) of the Social Security Act are met. Section 202(d)(4) of the Social Security Act, as amended by Public Law 104–121, requires as a condition of dependency, that a child receives onehalf of his or her support from the stepparent. This dependency impacts upon the entitlement of a spouse or survivor of an employee whose entitlement is based upon having a stepchild of the employee in care, or on an individual seeking a child’s annuity as a stepchild of an employee. Therefore, depending on the employee for at least one-half support is a condition affecting eligibility for increasing an employee or spouse VerDate Mar<15>2010 17:30 Jun 06, 2011 Jkt 223001 annuity under the social security overall minimum provisions on the basis of the presence of a dependent child, the employee’s natural child in limited situations, adopted children, stepchildren, grandchildren and stepgrandchildren and equitably adopted children. The regulations outlining child support and dependency requirements are prescribed in 20 CFR 222.50–57. In order to correctly determine if an applicant is entitled to a child’s annuity based on actual dependency, the RRB uses Form G–139, Statement Regarding Contributions and Support of Children, to obtain financial information needed to make a comparison between the amount of support received from the railroad employee and the amount received from other sources. Completion is required to obtain a benefit. One response is required of each respondent. Previous Requests for Comments: The RRB has already published the initial 60-day notice (76 FR 8384 on February 14, 2011) required by 44 U.S.C. 3506(c)(2). That request elicited no comments. Information Collection Request (ICR) Title: Statement Regarding Contributions and Support of Children. OMB Control Number: 3220–0195. Form(s) submitted: G–139. Type of request: Extension without change of a currently approved collection. Affected public: Individuals or Households. Abstract: Dependency on the employee for at least one-half support is a condition for increasing an employee or spouse annuity under the social security overall minimum provisions on the basis of the presence of a dependent child, the employee’s natural child in limited situations, adopted children, stepchildren, grandchildren and stepgrandchildren. The information collected solicits financial information needed to determine entitlement to a child’s annuity based on actual dependency. Changes proposed: The RRB proposes no changes to Form G–139. The burden estimate for the ICR is as follows: Estimated Completion Time for Form G–139 is estimated at 60 minutes. Estimated annual number of respondents: 500. Total annual responses: 500. Total annual reporting hours: 500. Additional Information or Comments: Copies of the forms and supporting documents can be obtained from Charles Mierzwa, the agency clearance officer at (312) 751–3363 or Charles.Mierzwa@RRB.GOV. PO 00000 Frm 00071 Fmt 4703 Sfmt 4703 33003 Comments regarding the information collection should be addressed to Patricia Henaghan, Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois, 60611–2092 or Patricia.Henaghan@RRB.GOV and to the OMB Desk Officer for the RRB, Fax: 202–395–6974, E-mail address: OIRA_Submission@omb.eop.gov. Charles Mierzwa, Clearance Officer. [FR Doc. 2011–14006 Filed 6–6–11; 8:45 am] BILLING CODE 7905–01–P SECURITIES AND EXCHANGE COMMISSION [Rel. No. IC–29687; File No. 812–13791] TIAA–CREF Life Insurance Company, et al. June 1, 2011. Securities and Exchange Commission (‘‘Commission’’) ACTION: Notice of application for an order under Section 26(c) of the Investment Company Act of 1940, as amended (the ‘‘1940 Act’’). AGENCY: TIAA–CREF Life Insurance Company (‘‘TC LIFE’’), TIAA–CREF Life Separate Account VA–1 (‘‘Separate Account VA–1’’), and TIAA–CREF Life Separate Account VLI–1 (‘‘Separate Account VLI–1’’) (together with, Separate Account VA–1, the ‘‘Separate Accounts’’) (all foregoing parties collectively referred to herein as the ‘‘Applicants’’). SUMMARY OF APPLICATION: Applicants request an order of the Commission, pursuant to Section 26(c) of the Act, approving the substitution of shares of the Commodity Return Strategy Portfolio of the Credit Suisse Trust (the ‘‘Substituted Portfolio’’) for Class II shares of the Natural Resources Portfolio of The Prudential Series Fund (the ‘‘Replacement Portfolio’’) under certain variable life insurance policies and variable annuity contracts (the ‘‘Contracts’’), each issued through a Separate Account. DATES: Filing Date: The application was filed on July 7, 2010 and amended and restated on November 3, 2010, January 20, 2011, March 14, 2011, and May 6, 2011. 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 must be APPLICANTS: E:\FR\FM\07JNN1.SGM 07JNN1 33004 Federal Register / Vol. 76, No. 109 / Tuesday, June 7, 2011 / Notices emcdonald on DSK2BSOYB1PROD with NOTICES received by the Commission by 5:30 p.m. on June 27, 2011, 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 requester’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 Secretary of the Commission. ADDRESSES: Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090. Applicants, c/o Ken Reitz, Associate General Counsel, TIAA–CREF Life Insurance Company, 8500 Andrew Carnegie Boulevard, Charlotte, North Carolina 28262–8500. FOR FURTHER INFORMATION CONTACT: Michael L. Kosoff, Branch Chief, at (202) 551–6754 or Harry Eisenstein, Senior Special Counsel, Office of Insurance Products, Division of Investment Management, at (202) 551–6795. SUPPLEMENTARY INFORMATION: The following is a summary of the application. The complete application may be obtained via the Commission’s Web site by searching for the file number, or for an applicant using the Company name box, at https:// www.sec.gov/search/search.htm, or by calling (202) 551–8090. Applicants’ Representations 1. TC LIFE is a stock life insurance company organized under the laws of the State of New York on November 20, 1996. TC LIFE’s executive office mailing address is 730 Third Avenue, New York, New York 10017. 2. TC LIFE established Separate Account VA–1 under New York state law on July 27, 1998. Separate Account VA–1 meets the definition of a ‘‘separate account’’ under the Federal securities laws and is registered with the Commission under the Act as a unit investment trust (File No. 811–08963). Separate Account VA–1 consists of 47 subaccounts, each investing in a different investment portfolio and including subaccounts investing in both the Substituted Portfolio and Replacement Portfolio. The subaccount investing in the Substituted Portfolio was closed to additional payments and transfers of contract value on April 12, 2010. The assets of Separate Account VA–1 support Contracts (the ‘‘Separate Account VA–1 Contracts’’) that offer the Substituted Portfolio and the Replacement Portfolio as investment options, and interests in Separate Account VA–1 offered through such Contracts have been registered under VerDate Mar<15>2010 17:30 Jun 06, 2011 Jkt 223001 the Securities Act of 1933 Act (the ‘‘1933 Act’’) on Form N–4 (File No. 333– 145064). Other than the subaccounts investing in the Substituted Portfolio and the two other Credit Suisse portfolios, all of the Separate Account VA–1 subaccounts are currently available under the Separate Account VA–1 Contracts. 3. TC LIFE is the legal owner of the assets in Separate Account VA–1. Pursuant to the Separate Account VA– 1 Contracts and prospectuses, TC LIFE reserves the right to substitute shares of one portfolio for shares of another. The terms of the Separate Account VA–1 Contracts and the prospectus for the Separate Account VA–1 Contracts also permit Contract owners to transfer contract value among the subaccounts. TC LIFE does not assess a transfer charge or limit the number of transfers permitted per year, although TC LIFE does have in place market timing policies and procedures that may operate to limit transfers. 4. TC LIFE established Separate Account VLI–1 under New York state law on May 23, 2001. Separate Account VLI–1 meets the definition of a ‘‘separate account’’ under the Federal securities laws and is registered with the Commission under the Act as a unit investment trust (File No. 811–10393). Separate Account VLI–1 consists of 47 subaccounts, each investing in a different investment portfolio and including subaccounts investing in both the Substituted Portfolio and the Replacement Portfolio. The subaccount investing in the Substituted Portfolio was closed to additional payments and transfers of contract value on April 12, 2010. The assets of Separate Account VLI–1 support Contracts (the ‘‘Separate Account VLI–1 Contracts’’) that offer the Substituted Portfolio and the Replacement Portfolio as investment options, and interests in Separate Account VLI–1 offered through such Contracts have been registered under the 1933 Act on Form N–6 (File Nos. 333–128699 and 333–151910). Other than the subaccounts investing in the Substituted Portfolio and the two other Credit Suisse portfolios, all of the Separate Account VLI–1 subaccounts are currently available under the Separate Account VLI–1 Contracts. 5. TC LIFE is the legal owner of the assets in Separate Account VLI–1. Pursuant to the Separate Account VLI– 1 Contracts and prospectuses, TC LIFE reserves the right to substitute shares of one portfolio for shares of another. The terms of the Separate Account VLI–1 Contracts and the prospectuses for the Separate Account VLI–1 Contracts also permit Contract owners to transfer PO 00000 Frm 00072 Fmt 4703 Sfmt 4703 contract value among the subaccounts. TC LIFE currently does not assess a transfer charge or limit the number of transfers permitted per year, although TC LIFE does reserve the right to deduct a $25 charge for the thirteenth and each additional transfer during a policy year. Transfers due to dollar cost averaging, automatic account rebalancing, loans, changes in a subaccount’s investment policy, or the initial reallocation from a money market subaccount do not count as transfers for the purpose of assessing the transfer charge. Contract owners also must transfer at least $250, or the total value in the allocation option being transferred, if less. TC LIFE also has in place market timing policies and procedures that may operate to limit transfers. TC LIFE also imposes certain restrictions on transfers from the fixed account. 6. Credit Suisse Trust was organized on March 15, 1995 under the laws of the Commonwealth of Massachusetts as a Massachusetts business trust. It is registered under the Act as a open-end management investment company (File No. 811–07261). Credit Suisse Trust currently consists of three portfolios, one of which—the Commodity Return Strategy Portfolio—is the Substituted Portfolio. The Credit Suisse Trust issues a separate series of shares of beneficial interest in connection with each portfolio and has registered such shares under the 1933 Act on Form N–1A (File No. 33–58125). Credit Suisse Asset Management, LLC (‘‘Credit Suisse Management’’) serves as the investment adviser to each portfolio of the Credit Suisse Trust. 7. The Prudential Series Fund is organized as a Delaware statutory trust and is registered under the Act as an open-end management investment company (File No. 811–03623). The Prudential Series Fund currently consists of 19 separate portfolios, one of which—the Natural Resources Portfolio—is the Replacement Portfolio. The Prudential Series Fund issues a separate series of shares of beneficial interest in connection with each portfolio and has registered such shares under the 1933 Act on Form N–1A (File No. 2–80896). Prudential Investments LLC (‘‘P.I.’’), a wholly-owned subsidiary of Prudential Financial, Inc., serves as the investment adviser to each portfolio of The Prudential Series Fund and receives an investment management fee from each portfolio it manages. 8. Prudential Mutual Fund Management, Inc. (‘‘PMFM’’), the former investment adviser to funds sponsored by Prudential Financial, Inc. and its affiliates, obtained an order from the Commission pursuant to Section 6(c) of E:\FR\FM\07JNN1.SGM 07JNN1 Federal Register / Vol. 76, No. 109 / Tuesday, June 7, 2011 / Notices the Act exempting it from Section 15(a) of the Act and Rule 18f–2 under the Act, with respect to subadvisory agreements (the ‘‘Manager of Managers Order’’).1 9. The Manager of Managers Order applies not only to the specific applicants but also to any future openend management investment company advised by PMFM or a person controlling, controlled by, or under common control with PMFM, provided that such investment company operates in substantially the same manner as the applicant investment company and complies with the condition of the Manager of Managers Order. More particularly, Applicants believe that the Manager of Managers Order permits P.I. to enter into and materially amend investment subadvisory agreements with respect to The Prudential Series Fund without obtaining shareholder approval. For this reason, the Applicants believe that the relief Substituted portfolio Investment Objective Seeks total return relative to the performance of the Dow Jones-UBS Commodity Index Total Return (‘‘DJ–UBS Index’’). Prudential Series Fund Natural Resources Portfolio (Class II Shares) Investment Objective Seeks long-term growth of capital. Replacement Portfolio, as stated in their respective prospectuses and/or Substituted portfolio Statements of Additional Information (‘‘SAI’’) dated May 1, 2011. Replacement portfolio Credit Suisse Trust Commodity Return Strategy Portfolio Principal Investment Strategies The Portfolio is designed to achieve positive total return relative to the performance of the Dow Jones-UBS Commodity Index Total Return (‘‘DJ–UBS Index’’). The Portfolio intends to invest its assets in a combination of commodity-linked derivative instruments and fixed income securities. The Portfolio gains exposure to commodities markets by investing in structured notes whose principal and/or coupon payments are linked to the DJ–UBS Index. The Portfolio may invest up to 25% of its total assets in a wholly owned subsidiary of the Portfolio formed in the Cayman Islands (the ‘‘Subsidiary’’), which has the same investment objective as the Portfolio and has a strategy of investing in commodity-linked swap agreements and other commodity-linked derivative instruments, futures contracts on individual commodities, or a subset of commodities and options on commodities. The Portfolio invests in a portfolio of fixed income securities normally having an average duration of one year or less, and emphasizes investment-grade fixed income securities.2 The Portfolio is a non-diversified mutual fund portfolio, meaning the Portfolio may invest a relatively high percentage of its assets in a small number of issuers.3 emcdonald on DSK2BSOYB1PROD with NOTICES granted in the Manager of Managers Order extends to the Natural Resources Portfolio. 10. Neither the Substituted Portfolio nor the Replacement Portfolio nor their investment advisers are affiliated with the Applicants. 11. The following charts set out the investment objective of the Substituted Portfolio and the Replacement Portfolio, as stated in their respective prospectuses dated May 1, 2011. Replacement portfolio Credit Suisse Trust Commodity Return Strategy Portfolio The following information sets out the current principal investment strategies of the Substituted Portfolio and the Prudential Series Fund Natural Resources Portfolio (Class II Shares) Principal Investment Strategies The Portfolio normally invests at least 80% of its net assets (plus any borrowings made for investment purposes) in common stocks and convertible securities of natural resource companies and securities that are related to the market value of some natural resource. Natural resource companies are companies that primarily own, explore, mine, process or otherwise develop natural resources, or supply goods and services to such companies. Natural resources generally include agricultural commodities, precious metals, such as gold, silver and platinum, ferrous and nonferrous metals, such as iron, aluminum and copper, strategic metals such as uranium and titanium, hydrocarbons such as coal and oil, timberland and undeveloped real property. The Portfolio seeks securities with an attractive combination of valuation versus peers, organic reserve and production growth, and competitive unit cost structure. Up to 20% of the Portfolio’s total assets may be invested in securities that are not asset-indexed or natural resource-related, including common stock, convertible stock, debt securities and money market instruments. Up to 50% of the Portfolio’s total assets may be invested in foreign equity and equity-related securities. The Portfolio may also pursue the following types of investment strategies and/or invest in the following types of securities: (i) Alternative investment strategies—including derivatives—to try and improve the Portfolio’s returns, to protect its assets or for short-term cash management. Derivatives includes options, futures contracts, swaps and swap options; (ii) forward foreign currency exchange contracts; (iii) purchase securities on a when-issued or delayed delivery basis; (iv) short sales against-the-box; (v) repurchase agreements. The Portfolio may participate with certain other portfolios of the Fund in a joint repurchase account under an order obtained from the SEC; and (vi) illiquid securities. Under normal circumstances, the Portfolio may invest up to 20% of its net assets in money market instruments. 1 The Target Portfolio Trust and Prudential Mutual Fund Management, Inc., Act Rel. No. 22215 (Sept. 11, 1996) (Order), File No. 812–10208. VerDate Mar<15>2010 17:30 Jun 06, 2011 Jkt 223001 33005 PO 00000 Frm 00073 Fmt 4703 Sfmt 4703 E:\FR\FM\07JNN1.SGM 07JNN1 33006 Federal Register / Vol. 76, No. 109 / Tuesday, June 7, 2011 / Notices Substituted portfolio Replacement portfolio The Portfolio is a non-diversified mutual fund portfolio, meaning the Portfolio may invest a relatively high percentage of its assets in a small number of issuers.4 The Portfolio will concentrate its investments (i.e., will invest at least 25% of its assets under normal circumstance) in securities of companies in the natural resources group of industries. emcdonald on DSK2BSOYB1PROD with NOTICES 12. The following sets out the principal investment risks of the Substituted Portfolio and the Replacement Portfolio, as stated in their respective prospectuses and/or SAIs dated May 1, 2011. The Commodity Return Strategy Portfolio is subject to the following principal investment risks: • Commodity Risk. The Portfolio’s investment in commodity-linked derivative instruments may subject the Portfolio to greater volatility than investments in traditional securities, particularly if the instruments involve leverage. The value of commoditylinked derivative instruments may be affected by changes in overall market movements, commodity index volatility, changes in interest rates, or factors affecting a particular industry or commodity, such as drought, floods, weather, livestock disease, embargoes, tariffs, and international economic, political, and regulatory developments. Use of leveraged commodity-linked derivatives creates an opportunity for increased return but, at the same time, creates the possibility for greater loss 2 While not identified as a principal investment strategy in the prospectus, the Portfolio also may invest without limit in U.S. dollar-denominated foreign securities and may invest up to 30% of its assets in non-U.S. dollar denominated securities. 3 The Commodity Return Strategy Portfolio’s investments will be limited, however, in order to qualify as a ‘‘regulated investment company’’ for purposes of the Internal Revenue Code. The Portfolio has obtained a private letter ruling from the Internal Revenue Service confirming that the income produced by certain types of commodityindex linked structured notes constitutes qualifying income for purposes of qualifying as a ‘‘regulated investment company.’’ To qualify, the Portfolio complies with certain requirements, including limiting its investments so that at the close of each quarter of the taxable year (i) not more than 25% of the market value of its total assets are invested in the securities of a single issuer, and (ii) with respect to 50% of the market value of its total assets, not more than 5% of the market value of its total assets are invested in the securities of a single issuer and the portfolio does not own more than 10% of the outstanding voting securities of a single issuer. 4 The Natural Resources Portfolio may not purchase any security (other than obligations of the U.S. government, its agencies or instrumentalities) if, as a result of such purchase, 25% or more of the Portfolio’s total assets (determined at the time of investment) would be invested in any one industry; provided, however, that the Portfolio will concentrate its investment in securities of companies in the natural resources group of industries. VerDate Mar<15>2010 17:30 Jun 06, 2011 Jkt 223001 (including the likelihood of greater volatility of the portfolio’s net asset value), and there can be no assurance that the portfolio’s use of leverage will be successful. • Correlation Risk. Changes in the value of a hedging instrument may not match those of the investment being hedged. In addition, commodity-linked structured notes may be structured in a way that results in the portfolio’s performance diverging from the DJ–UBS Index, perhaps materially. For example, a note can be structured to limit the loss or the gain on the investment, which would result in the portfolio not participating in declines or increases in the DJ–UBS Index that exceed the limits. • Credit Risk. The issuer of a security or the counterparty to a contract, including derivatives contracts, may default or otherwise become unable to honor a financial obligation. • Derivatives Risk. Derivatives are financial contracts whose value depends on, or is derived from, the value of an underlying asset, reference rate, or index. The Portfolio typically uses derivatives as a substitute for taking a position in the underlying asset and/or as part of a strategy designed to reduce exposure to other risks, such as interest rate or currency risk. The Portfolio may also use derivatives for leverage. The Portfolio’s use of derivative instruments, particularly commodity-linked derivatives, involves risks different from, or possibly greater than, the risks associated with investing directly in securities and other traditional investments. Derivatives are subject to a number of risks, such as commodity risk, correlation risk, liquidity risk, interest-rate risk, market risk, and credit risk. Also, suitable derivative transactions may not be available in all circumstances and there can be no assurance that the portfolio will engage in these transactions to reduce exposure to other risks that would be beneficial. • Exposure Risk. There is a risk associated with investments (such as derivatives) or practices (such as short selling) that increase the amount of money the portfolio could gain or lose on an investment. Exposure risk could multiply losses generated by a derivative or practice used for hedging PO 00000 Frm 00074 Fmt 4703 Sfmt 4703 purposes. Such losses should be substantially offset by gains on the hedged investment. However, while hedging can reduce or eliminate losses, it can also reduce or eliminate gains. To the extent that a derivative or practice is not used as a hedge, the Portfolio is directly exposed to its risks. Gains or losses from speculative positions in a derivative may be much greater than the derivative’s original cost. For example, potential losses from writing uncovered call options and from speculative short sales are unlimited. • Extension Risk. An unexpected rise in interest rates may extend the life of a fixed income security beyond the expected payment time, typically reducing the security’s value. • Focus Risk. The Portfolio will be exposed to the performance of commodities in the DJ–UBS Index, which may from time to time have a small number of commodity sectors (e.g., energy, metals or agricultural) representing a large portion of the index. As a result, the Portfolio may be subject to greater volatility than if the index were more broadly diversified among commodity sectors. • Interest Rate Risk. Changes in interest rates may cause a decline in the market value of an investment. With bonds and other fixed-income securities, a rise in interest rates typically causes a fall in values, while a fall in interest rates typically causes a risk in values. • Liquidity Risk. Certain portfolio securities, such as commodity-linked notes and swaps, may be difficult or impossible to sell at the time and the price that the Portfolio would like. The Portfolio may have to lower the price, sell other securities instead, or forgo an investment opportunity. Any of these could have a negative effect on portfolio management or performance. • Market Risk. The market value of a security may fluctuate, sometimes rapidly and unpredictably. These fluctuations, which are often referred to as ‘‘volatility,’’ may cause a security to be worth less than it was worth at an earlier time. Market risk may affect a single issuer, industry, commodity, sector of the economy, or the market as a whole. Market risk is common to most investments, including: stocks, bonds E:\FR\FM\07JNN1.SGM 07JNN1 emcdonald on DSK2BSOYB1PROD with NOTICES Federal Register / Vol. 76, No. 109 / Tuesday, June 7, 2011 / Notices and commodities, and the mutual funds that invest in them. • Non-diversified Status. The Portfolio is considered a non-diversified investment company under the Act and is permitted to invest a greater proportion of its assets in the securities of a smaller number of issuers. As a result, the portfolio may be subject to greater volatility with respect to its portfolio securities than a fund that is diversified. • Subsidiary Risk. By investing in the Credit Suisse Cayman Commodity Fund II, Ltd. (the ‘‘Subsidiary’’), the Portfolio is indirectly exposed to the risks associated with the Subsidiary’s investments. The derivatives and other investments held by the Subsidiary are generally similar to those that are permitted to be held by the Portfolio and are subject to the same risks that apply to similar investments if held directly by the Portfolio. There can be no assurance that the investment objective of the Subsidiary will be achieved. The Subsidiary is not registered under the Act and is not subject to all the investor protections of the Act. However, the Portfolio wholly owns and controls the Subsidiary, and the Portfolio and the Subsidiary are both managed by Credit Suisse Asset Management, LLC, making it unlikely that the Subsidiary will take action contrary to the risks of the Portfolio and its shareholders. Changes in the laws of the United States and/or the Cayman Islands could result in the inability of the Portfolio and/or the Subsidiary to operate as it does currently and could adversely affect the Portfolio. • Tax Risk. Any income the Portfolio derives from direct investments in commodity-linked swaps or certain other commodity-linked derivatives must be limited to a maximum of 10% of the portfolio’s gross income in order for the portfolio to maintain its pass through tax status. The Portfolio has obtained a private letter ruling from the Internal Revenue Service (the ‘‘IRS’’) confirming that the income produced by certain types of structured notes constitutes ‘‘qualifying income’’ under the Internal Revenue Code. In addition, the IRS has issued a private letter ruling to the Portfolio confirming that income derived from the Portfolio’s investment in its Subsidiary will also constitute qualifying income to the Portfolio. Based on such rulings, the Portfolio seeks to gain exposure to the commodity markets primarily through investments in commodity index-linked notes and, through investments in the Subsidiary, commodity-linked swaps and commodity futures. VerDate Mar<15>2010 17:30 Jun 06, 2011 Jkt 223001 • Portfolio Turnover Risk. Active and frequent trading increases transaction costs, which could detract from the portfolio’s performance. • CFTC Regulatory Risk. Regulatory changes could adversely affect the portfolio by limiting its trading activities in futures and increasing Fund expenses. On February 11, 2011, the Commodity Futures Trading Commission (‘‘CFTC’’) published a rule proposal that would limit the Fund’s ability to use futures in reliance on certain CFTC exemptions. If the new rule is adopted as proposed, the amended CFTC exemption would limit the portfolio’s use of futures to (i) bona fide hedging transactions, as defined by the CFTC, and (ii) speculative transactions, provided that the speculative positions do not exceed 5% of the liquidation value of the portfolio. If the portfolio could not satisfy the requirements for the amended exemption, the disclosure and operations of the portfolio would need to comply with all applicable regulations governing commodity pools. Other potentially adverse regulatory initiatives could develop. The Natural Resources Portfolio is subject to the following principal investment risks: • Derivatives Risk. The use of derivatives involves a variety of risks. There is a risk that the counterparty on a derivative transaction will be unable to honor its financial obligation to the Portfolio. Certain derivatives and related trading strategies create debt obligations similar to borrowings and, therefore, create leverage which can result in losses to a Portfolio that exceed the amount the Portfolio originally invested. Certain exchange-traded derivatives may be difficult or impossible to buy or sell at the time that the seller would like or at the price that the seller believes the derivative is currently worth. Privately negotiated derivatives may be difficult to terminate or otherwise offset. Derivatives used for hedging may reduce losses but also reduce or eliminate gains and cause losses if the market moves in a manner different from that anticipated by the Portfolio. Furthermore, commodity-linked derivative instruments may be more volatile than the prices of investments in traditional equity and debt securities. • Equity Securities Risk. There is a risk that the value or price of a particular stock or other equity or equity-related security owned by the Portfolio could go down. In addition to an individual stock losing value, the value of the equity markets or a sector of those markets in which the Portfolio invests could go down. PO 00000 Frm 00075 Fmt 4703 Sfmt 4703 33007 • Expense Risk. The actual cost of investing in the Portfolio may be higher than the expenses shown in the Annual Portfolio Operating Expenses. • Foreign Investment Risk. Investment in foreign securities generally involves more risk than investing in securities of U.S. issuers. Changes in currency exchange rates may affect the value of foreign securities held by the Portfolio. Securities of issuers located in emerging markets tend to have volatile prices and may be less liquid than investments in more established markets. Moreover, foreign markets generally are more volatile than U.S. markets, are not subject to regulatory requirements comparable to those in the U.S., and are subject to differing custody and settlement practices. Foreign financial reporting standards usually differ from those in the U.S., and foreign exchanges are smaller and less liquid than the U.S. market. Political developments may adversely affect the value of a Portfolio’s foreign securities, and foreign holdings may be subject to special taxation and limitations on repatriating investment proceeds. • Industry/Sector Risk. A portfolio that invests in a single market sector or industry can accumulate larger positions in a single issuer or an industry sector. As a result, the Portfolio’s performance may be tied more directly to the success or failure of a small group of portfolio holdings. • Liquidity and Valuation Risk. From time to time, the Portfolio may hold one or more securities for which there are no or few buyers and sellers or which are subject to limitations on transfer. The Portfolio also may have difficulty disposing of those securities at the values determined by the Portfolio for the purpose of determining the Portfolio’s net asset value, especially during periods of significant net redemptions of Portfolio shares. • Market and Management Risk. Markets in which the Portfolio invests may experience volatility and go down in value, and possibly sharply and unpredictably. All decisions by an adviser require judgment and are based on imperfect information. Additionally, the investment techniques, risk analysis and investment strategies used by an adviser in making investment decisions for the Portfolio may not produce the desired results. • Non-diversification Risk. As a nondiversified portfolio, the Portfolio may hold larger positions in single issuers than a diversified fund. Because the Portfolio is not required to meet diversification requirements that are applicable to some funds, there is an E:\FR\FM\07JNN1.SGM 07JNN1 33008 Federal Register / Vol. 76, No. 109 / Tuesday, June 7, 2011 / Notices increased risk that the Portfolio may be adversely affected by the performance of relatively few securities or the securities of a single issuer. 13. The following charts compare the investment management fees and total operating expenses (before and after any waivers and reimbursements) for the year ended December 31, 2010, expressed as an annual percentage of average daily net assets, of the Substituted Portfolio and the Replacement Portfolio. Substituted portfolio Credit Suisse Trust Commodity Return Strategy portfolio Investment Management Fees ........................................................................................................................ Distribution and Service (12b–1) Fee .............................................................................................................. Administration Fees ......................................................................................................................................... Other Expenses ............................................................................................................................................... Total Operating Expenses ............................................................................................................................... Less Expense Waivers and Reimbursements ................................................................................................. Total Net Operating Expenses ........................................................................................................................ 14. The following charts compare the average annual total returns of the Substituted Portfolio and the Replacement Portfolio for the one-year, five-year, and ten-year (or since Replacement portfolio Prudential Series Fund Natural Resources portfolio (class II) 5 0.50% .............. 0.25% ................ None .................. 0.34% ................ 1.09% ................ N/A .................... 1.09% ................ 0.45% 0.25% 0.15% 0.05% 0.90% N/A 0.90% inception) periods ended December 31, 2010. Substituted portfolio Credit Suisse Trust Commodity Return Strategy portfolio Average Annual Total Return for One Year .................................................................................................... Average Annual Total Return for Five Years .................................................................................................. Average Annual Total Return for Ten Years or, if less, Since Inception ........................................................ 15. The following charts compare the levels of net assets (rounded to the nearest thousand) of the Substituted Portfolio and the Replacement Portfolio on December 31, 2010 and the prior four calendar years, as well as the levels of net assets of the Separate Accounts invested in the Substituted Portfolio for Replacement portfolio Prudential Fund Series Natural Resources portfolio +16.66% ............ N/A .................... 2.98% ................ (Date of Inception:. February 28, 2006). +27.48% 13.61% +20.25% (Date of Inception: April 28, 2005) the same time period and the percentage of the Substituted Portfolio’s total net assets represented by the investments of the Separate Accounts. Substituted portfolio Credit Suisse Trust Commodity Return Strategy portfolio Total separate account assets invested in the portfolio emcdonald on DSK2BSOYB1PROD with NOTICES On On On On On On 12/31/2010 12/31/2009 12/31/2008 12/31/2007 12/31/2006 12/31/2005 ......................................................................... ......................................................................... ......................................................................... ......................................................................... ......................................................................... ......................................................................... Percent of portfolio total net assets represented by separate account investment $1,671,571 1,713,589 424,299 21,813 287 N/A Total net assets (in thousands) 1.34% 1.58% 0.61% 0.04% 0.0002% N/A 16. Applicants represent that the Substitution is part of an overall business goal of TC LIFE to make the Contracts more attractive to Contract owners and to assure a consistency in the range of overall investment options provided by the Contracts. Pursuant to this goal, TC LIFE has engaged in a thorough review of the efficiencies and structures of all of the investment 5 Management fee of the Commodity Return Strategy Portfolio and the Credit Suisse Cayman Commodity Fund II, Ltd. (the ‘‘Subsidiary’’). $124,550 108,211 69,919 56,624 6145,907 N/A 6 For the period February 28, 2006 (commencement of operations) through December 31, 2006. VerDate Mar<15>2010 17:30 Jun 06, 2011 Jkt 223001 PO 00000 Frm 00076 Fmt 4703 Sfmt 4703 Replacement portfolio Prudential Fund Series Natural Resources portfolio total net assets (in thousands) $1,360.056 1,079,600 677,400 1,669,900 1,193,000 1,016,300 options it offers under the Contracts. This review involved an evaluation of the investment objectives and strategies, asset sizes, expense ratios, investment performance, investment process, and E:\FR\FM\07JNN1.SGM 07JNN1 emcdonald on DSK2BSOYB1PROD with NOTICES Federal Register / Vol. 76, No. 109 / Tuesday, June 7, 2011 / Notices investment teams responsible for the management of each investment option, with a view to past performance as well as future expectations. Based on this evaluation, TC LIFE has determined that the Substituted Portfolio warrants replacement. 17. Applicants represent that TC LIFE reviewed all of the underlying fund options with the goal of ensuring that Contract owners would be provided with investment options under their Contracts following the Substitution that are similar to the investment options under their Contracts before the Substitution. Based in particular on a better performance record and lower total expenses of the Replacement Portfolio, TC LIFE believes that the adviser to the Replacement Portfolio is better able to offer the potential for consistent above-average performance for the Portfolio than is the adviser to the Substituted Portfolio. The Replacement Portfolio also is considerably larger than the Substituted Portfolio, thus offering better economies of scale with a larger asset base over which to spread the various portfolio costs ultimately passed on to Contract owners. As such, TC LIFE believes that effecting the Substitution will provide Contract owners with a Replacement Portfolio that has a comparable investment objective to the Substituted Portfolio but is, overall, less expensive, consistent with the desired asset class exposure, better positioned to provide consistent above-average performance, and with greater expectations for growth. Moreover, TC LIFE maintains that the investment objective and policies of the Replacement Portfolio are sufficiently similar to those of the Substituted Portfolio so that Contract owners will have reasonable continuity in investment expectations. 18. Applicants seek the Commission’s approval under Section 26(c) to engage in the substitution transaction described below. Pursuant to its authority under the respective Contracts and the prospectuses describing the same, and subject to the approval of the Commission under Section 26(c) of the Act, TC LIFE proposes to substitute shares of the Commodity Return Strategy Portfolio of the Credit Suisse Trust for Class II Shares of the Natural Resources Portfolio of The Prudential Series Fund. 19. Applicants represent that TC LIFE will effect the Substitution as soon as practicable following the issuance of the requested order as follows. As of the effective date of the Substitution (the ‘‘Effective Date’’), shares of the Substituted Portfolio will be redeemed for cash and that cash will be used to VerDate Mar<15>2010 17:30 Jun 06, 2011 Jkt 223001 purchase shares of the Replacement Portfolio. Redemption requests and purchase orders will be placed simultaneously so that contract values will remain fully invested at all times. All redemptions of shares of the Substituted Portfolio and purchases of shares of the Replacement Portfolio will be effected in accordance with Section 22(c) of the Act and Rule 22c–1 thereunder. The Substitution will take place at relative net asset value as of the Effective Date with no change in the amount of any Contract owner’s contract value or death benefit or in the dollar value of his or her investments in any of the subaccounts. 20. Applicants represent that contract values attributable to investments in the Substituted Portfolio will be transferred to the Replacement Portfolio without charge (including sales charges or surrender charges) and without counting toward the number of transfers that may be permitted without charge. Contract owners will not incur any additional fees or charges as a result of the Substitution, nor will their rights or TC LIFE’s obligations under the Contracts be altered in any way, and the Substitution will not change Contract owners’ insurance benefits under the Contracts. All expenses incurred in connection with the Substitution, including legal, accounting, transactional, and other fees and expenses, including brokerage commissions, will be paid by TC LIFE. In addition, the Substitution will not impose any tax liability on Contract owners. The Substitution will not cause the Contract fees and charges currently paid by existing Contract owners to be greater after the Substitution than before the Substitution. TC LIFE will not exercise any right it may have under the Contracts to impose a transfer charge or restrictions on transfers under the Contracts for the period beginning on the date the initial application was filed with the Commission through at least thirty (30) days following the Effective Date for transfers of contract value from the subaccount investing in the Substituted Portfolio (before the Substitution) or the Replacement Portfolio (after the Substitution) to one or more other subaccount(s).7 21. The Applicants represent that they will not receive, for three years from the date of the Substitution, any direct or indirect benefits from the Replacement Portfolio, its advisors or underwriters (or their affiliates), in connection with 7 One exception to this would be restrictions that TIAA–CREF may impose to prevent or restrict ‘‘market timing’’ activities by Contract owners or their agents. PO 00000 Frm 00077 Fmt 4703 Sfmt 4703 33009 assets attributable to Contracts affected by the Substitution, at a higher rate than Applicants have received from the Substituted Portfolio, its advisors or underwriters (or their affiliates), including without limitation Rule 12b– 1 fees, shareholder service, administration, or other service fees, revenue sharing, or other arrangements in connection with such assets. Applicants represent that the Substitution and the selection of the Replacement Portfolio were not motivated by any financial consideration paid or to be paid to TC LIFE or its affiliates by the Replacement Portfolio, its advisors, underwriters, or their respective affiliates. 22. The Applicants assert that the procedures to be implemented are sufficient to assure that each Contract owner’s cash values immediately after the Substitution shall be equal to the cash value immediately before the Substitution. 23. The Applicants represent that Existing Contract owners as of the date the initial application was filed, and new Contract owners who have purchased or who will purchase a Contract subsequent to that date but prior to the Effective Date, have been or will be notified of the proposed Substitution by means of a prospectus or prospectus supplement for each of the Contracts (‘‘Pre-Substitution Notice’’). The Pre-Substitution Notice: • States that the Applicants filed the application to seek approval of the Substitution; • Sets forth the anticipated Effective Date; • Explains that contract values attributable to investments in the Substituted Portfolio would be transferred to the Replacement Portfolio on the Effective Date; and • States that, from the date the initial application was filed with the Commission through the date thirty (30) days after the Substitution, Contract owners may transfer contract value from the subaccount investing in the Substituted Portfolio (before the Substitution) or the Replacement Portfolio (after the Substitution) to one or more other subaccount(s) without a transfer charge and without that transfer counting against their contractual transfer limitations. Further, all Contract owners will have received a copy of the most recent prospectus for the Replacement Portfolio prior to the Substitution. 24. Finally, the Applicants represent that within five (5) days following the Substitution, Contract owners affected by the Substitution will be notified in writing that the Substitution was carried E:\FR\FM\07JNN1.SGM 07JNN1 emcdonald on DSK2BSOYB1PROD with NOTICES 33010 Federal Register / Vol. 76, No. 109 / Tuesday, June 7, 2011 / Notices out. This notice will restate the information set forth in the PreSubstitution Notice, and will also explain that the contract values attributable to investments in the Substituted Portfolio were transferred to the Replacement Portfolio without charge (including sales charges or surrender charges) and without counting toward the number of transfers that may be permitted without charge. 25. Applicants represent that Section 26(c) of the Act prohibits any depositor or trustee of a unit investment trust that invests exclusively in the securities of a single issuer from substituting the securities of another issuer without the approval of the Commission. Section 26(c) provides that such approval shall be granted by order of the Commission, if the evidence establishes that the substitution is consistent with the protection of investors and the purposes of the Act. Section 26(c) was intended to provide for Commission scrutiny of proposed substitutions which could, in effect, force shareholders dissatisfied with the substitute security to redeem their shares, thereby possibly incurring a loss of the sales load deducted from initial premium, an additional sales load upon reinvestment of the proceeds of redemption, or both.8 The section was designed to forestall the ability of a depositor to present holders of interest in a unit investment trust with situations in which a holder’s only choice would be to continue an investment in an unsuitable underlying security, or to elect a costly and, in effect, forced redemption. For the reasons described below, the Applicants submit that the Substitution meets the standards set forth in Section 26(c) and that, if implemented, the Substitution would not raise any of the aforementioned concerns that Congress intended to address when the Act was amended to include this provision. In addition, the Applicants submit that the proposed Substitution meets the standards that the Commission and its Staff have applied to substitutions that have been approved in the past. 26. Applicants represent that the replacement of the Substituted Portfolio with the Replacement Portfolio is consistent with the protection of Contract owners and the purposes fairly intended by the policy and provisions of the Act and, thus, meets the standards necessary to support an order pursuant to Section 26(c) of the Act. 8 House Comm. Interstate Commerce, Report of the Securities and Exchange Commission on the Public Policy Implications of Investment Company Growth, H.R. Rep. No. 2337, 89th Cong. 2d Session 337 (1966). VerDate Mar<15>2010 17:30 Jun 06, 2011 Jkt 223001 27. The Applicants assert that the investment objective and principal investment strategies of the Replacement Portfolio are substantially similar to those of the Substituted Portfolio. The Commodity Return Strategy Portfolio seeks total return relative to the performance of the DJ– UBS Index, and the Natural Resources Portfolio seeks long-term growth of capital. Applicants submit that these are substantially similar investment objectives and, while the Portfolios’ principal investment strategies are somewhat different, there is nonetheless a high correlation between the two sets of investment strategies. The Commodity Return Strategy Portfolio is designed to achieve positive total return relative to the performance of the DJ– UBS Index by investing in commoditylinked derivative instruments and fixed income securities, whereas the Natural Resources Portfolio normally invests at least 80% of its net assets in common stocks and convertible securities of natural resource companies and securities that are related to the market value of some natural resource. However, the companies in which the Natural Resources Portfolio invests derive the vast majority of their respective revenue from commodities. In other words, the valuation of the companies in which the Natural Resources Portfolio invests move directly with the underlying commodities that represent these firms’ primary businesses. As such, there is a high correlation between the Natural Resources Portfolio’s performance to the price changes in the DJ–UBS Index which underlies the Commodity Return Strategy Portfolio’s investment strategy. This high correlation is demonstrated by comparing the performance of investments in natural resources companies (as measured by the S&P North American Natural Resources Index) and commodities (as measured by DJ–UBS Index), for which the correlation (as reported by Morningstar) exceeds 80% over both the trailing three-year and five-year periods. Given the high correlation between the performance of the Natural Resources Portfolio and the Commodity Return Strategy Portfolio, the Applicants believe that the Natural Resources Portfolio is a suitable replacement for the Commodity Return Strategy Portfolio. While the holdings of companies in which the Natural Resources Portfolio invests, with their resultant capital structures, tax exposures, and idiosyncratic risks, do not provide a perfect correlation to a spot commodities index, Applicants PO 00000 Frm 00078 Fmt 4703 Sfmt 4703 believe the same is true with a portfolio comprised of structured notes tied to commodities futures. Accordingly, the Applicants believe that the close approximation of the Natural Resources Portfolio to the commodities sector exposure supports a determination that the Natural Resources Portfolio will provide Contract owners currently invested in the Commodity Return Strategy Portfolio an acceptable level of exposure to the commodities sector and is a reasonable substitution for the Commodity Return Strategy Portfolio. 28. The Applicants represent that, although not identical, the principal investment risks of the Natural Resources Portfolio are comparable to those of the Commodity Return Strategy Portfolio. Both Portfolios use derivatives, exposing each Portfolio to a number of specific derivative-related risks such as the possibility that the counterparty to the transaction is unable to honor its financial obligation; using derivatives may also subject each Portfolio to other more general risks including commodity risk, correlation risk, liquidity risk, interest-rate risk, market risk, and credit risk. Because both Portfolios may invest in foreign securities, they also are subject to increased risk relating to currency exchange rate fluctuations, price volatility, adverse political developments, etc. Both Portfolios also are subject to market risk relating to increased and/or unpredictable fluctuations in the market value of the securities in which they invest, as well as to liquidity risk. Finally, both the Natural Resources Portfolio and the Commodity Return Strategy Portfolio are non-diversified investment companies, and therefore may invest in fewer issuers and be more greatly affected by the performance of relatively few securities. Further, the Applicants do not believe that overall the Natural Resources Portfolio is exposed to greater risk than the Commodity Return Strategy Portfolio, despite the fact that certain enumerated risks of the Natural Resources Portfolio are not explicitly detailed as principal investment risks in the prospectus for the Commodity Return Strategy Portfolio. For example, the Applicants believe that the Commodity Return Strategy Portfolio, like the Natural Resources Portfolio, is subject to commodity price risk, expense risk, industry/sector risk, and valuation risk—all typical risks that are generally present for most portfolios that invest in the commodity and natural resources asset categories. Moreover, the Natural Resources Portfolio is not subject to the specific E:\FR\FM\07JNN1.SGM 07JNN1 emcdonald on DSK2BSOYB1PROD with NOTICES Federal Register / Vol. 76, No. 109 / Tuesday, June 7, 2011 / Notices derivative, tax, and focus risks the Commodity Return Strategy Portfolio is exposed to as a result of the latter’s primary investment in commoditylinked instruments. Lastly, because the Commodity Return Strategy Portfolio invests in the Credit Suisse Cayman Commodity Fund II, Ltd., the Portfolio also is indirectly exposed to the risks associated with that portfolio’s investments. 29. The Applicants represent that the investment management fee of the Natural Resources Portfolio is lower than that of the Commodity Return Strategy Portfolio, and each Portfolio imposes a 12b–1 fee of 0.25%. Moreover, total operating expenses of the Natural Resources Portfolio were lower than those of the Commodity Return Strategy Portfolio as of December 31, 2010. 30. The Applicants represent that the Natural Resources Portfolio outperformed the Commodity Return Strategy Portfolio for the one-year period ending December 31, 2010 and since inception. In addition, the assets of the Natural Resources Portfolio have been consistently (and significantly) higher than those of the Commodity Return Strategy Portfolio as of December 31, 2010 and for each of the prior four calendar years. 31. For purposes of the approval sought pursuant to Section 26(c) of the Act, the Applicants represent that the Substitution will not be completed unless all of the following conditions are met. • The Commission shall have issued an order approving the Substitution under Section 26(c) of the Act as necessary to carry out the transactions described in the Application. • Each Contract owner will have been sent (i) prior to the Effective Date, a copy of the effective prospectus for the Replacement Portfolio, (ii) prior to the Effective Date, a Pre-Substitution Notice describing the terms of the Substitution and the rights of the Contract owners in connection with the Substitution, and (iii) within five (5) days after the Substitution occurs, a notice informing Contract owners affected by the Substitution that the Substitution was carried out (this notice will restate the information set forth in the PreSubstitution Notice, and also explain that the contract values attributable to investments in the Substituted Portfolio were transferred to the Replacement Portfolio without charge (including sales charges or surrender charges) and without counting toward the number of transfers that may be permitted without charge). VerDate Mar<15>2010 17:30 Jun 06, 2011 Jkt 223001 • The Applicants have satisfied themselves that (i) the Contracts allow the substitution of the Portfolios in the manner contemplated by the Substitution and related transactions described herein, (ii) the transactions can be consummated as described in the Application under applicable insurance laws, and (iii) any applicable regulatory requirements in each jurisdiction where the Contracts are qualified for sale have been complied with to the extent necessary to complete the transaction. 32. The Applicants acknowledge that reliance on exemptive relief, if granted, depends upon compliance with all of the representations and conditions set forth in the Application. Conclusion Applicants assert that, for all the reasons stated in the Applicant, the Substitution is consistent with the protection of investors and the purposes fairly intended by the policy of the Contracts and provisions of the Act and that the requested order should be granted. For the Commission, by the Division of Investment Management pursuant to delegated authority. Cathy H. Ahn, Deputy Secretary. [FR Doc. 2011–13995 Filed 6–6–11; 8:45 am] BILLING CODE 8011–01–P 33011 I. Self-Regulatory Organization’s Statement of the Terms of the Substance of the Proposed Rule Change BX proposes to make a correction to the definition of ‘‘Direct Access’’ in Exchange Rule 7019(c). The Exchange proposes to implement the proposed rule change immediately. The text of the proposed rule change is available from the principal office of the Exchange, at the Commission’s Public Reference Room and also on the Exchange’s Internet Web site at https:// nasdaqomxbx.cchwallstreet.com/ NASDAQOMXBX/Filings/. II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, BX included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. BX has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose SECURITIES AND EXCHANGE COMMISSION [Release No. 34–64577; File No. SR–BX– 2011–028] Self-Regulatory Organizations; The NASDAQ OMX BX Inc. LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Regarding the Correction of an Inadvertent Error in Exchange Rule 7019(c) June 1, 2011. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’),1 and Rule 19b–4 thereunder,2 notice is hereby given that on May 20, 2011, The NASDAQ BX OMX, Inc. LLC (‘‘BX’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by BX. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. 3 Securities Exchange Act Release No. 63442 (December 6, 2010), 75 FR 77029, (December 10, 2010) (SR–BX–2010–081). 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. PO 00000 Frm 00079 Fmt 4703 The Exchange proposes to make a correction to Exchange Rule 7019(c) of its Market Data Distributor Fees rule to correct an inadvertent error in the definition of ‘‘Direct Access’’ contained in a recent filing (‘‘previous filing’’).3 The previous filing intended to amend the fee schedule to correct an anomaly that effectively exempted certain customers residing within the Exchange’s co-location facility from paying a monthly fee for direct access to Exchange data, while customers that received data from an extranet and resided outside the co-location facility were assessed the fee. The previous filing also deleted outdated verbiage in the fee schedule in order to eliminate confusion regarding application of the fees. However, the rule language contained an inadvertent error that effectively still exempts certain colocated customers receiving Exchange data feeds from paying a direct access fee. The definition should be corrected to make clear that the definition of ‘‘Direct Sfmt 4703 E:\FR\FM\07JNN1.SGM 07JNN1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 76, Number 109 (Tuesday, June 7, 2011)]
[Notices]
[Pages 33003-33011]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-13995]

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SECURITIES AND EXCHANGE COMMISSION

[Rel. No. IC-29687; File No. 812-13791]

TIAA-CREF Life Insurance Company, et al.

June 1, 2011.
AGENCY: Securities and Exchange Commission (``Commission'')

ACTION: Notice of application for an order under Section 26(c) of the
Investment Company Act of 1940, as amended (the ``1940 Act'').

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Applicants: TIAA-CREF Life Insurance Company (``TC LIFE''), TIAA-CREF
Life Separate Account VA-1 (``Separate Account VA-1''), and TIAA-CREF
Life Separate Account VLI-1 (``Separate Account VLI-1'') (together
with, Separate Account VA-1, the ``Separate Accounts'') (all foregoing
parties collectively referred to herein as the ``Applicants'').

Summary of Application: Applicants request an order of the Commission,
pursuant to Section 26(c) of the Act, approving the substitution of
shares of the Commodity Return Strategy Portfolio of the Credit Suisse
Trust (the ``Substituted Portfolio'') for Class II shares of the
Natural Resources Portfolio of The Prudential Series Fund (the
``Replacement Portfolio'') under certain variable life insurance
policies and variable annuity contracts (the ``Contracts''), each
issued through a Separate Account.

DATES: Filing Date: The application was filed on July 7, 2010 and
amended and restated on November 3, 2010, January 20, 2011, March 14,
2011, and May 6, 2011.

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 must be

[[Page 33004]]

received by the Commission by 5:30 p.m. on June 27, 2011, 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 requester'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 Secretary of the
Commission.

ADDRESSES: Secretary, Securities and Exchange Commission, 100 F Street,
NE., Washington, DC 20549-1090. Applicants, c/o Ken Reitz, Associate
General Counsel, TIAA-CREF Life Insurance Company, 8500 Andrew Carnegie
Boulevard, Charlotte, North Carolina 28262-8500.

FOR FURTHER INFORMATION CONTACT: Michael L. Kosoff, Branch Chief, at
(202) 551-6754 or Harry Eisenstein, Senior Special Counsel, Office of
Insurance Products, Division of Investment Management, at (202) 551-
6795.

SUPPLEMENTARY INFORMATION: The following is a summary of the
application. The complete application may be obtained via the
Commission's Web site by searching for the file number, or for an
applicant using the Company name box, at https://www.sec.gov/search/search.htm, or by calling (202) 551-8090.

Applicants' Representations

1. TC LIFE is a stock life insurance company organized under the
laws of the State of New York on November 20, 1996. TC LIFE's executive
office mailing address is 730 Third Avenue, New York, New York 10017.
2. TC LIFE established Separate Account VA-1 under New York state
law on July 27, 1998. Separate Account VA-1 meets the definition of a
``separate account'' under the Federal securities laws and is
registered with the Commission under the Act as a unit investment trust
(File No. 811-08963). Separate Account VA-1 consists of 47 subaccounts,
each investing in a different investment portfolio and including
subaccounts investing in both the Substituted Portfolio and Replacement
Portfolio. The subaccount investing in the Substituted Portfolio was
closed to additional payments and transfers of contract value on April
12, 2010. The assets of Separate Account VA-1 support Contracts (the
``Separate Account VA-1 Contracts'') that offer the Substituted
Portfolio and the Replacement Portfolio as investment options, and
interests in Separate Account VA-1 offered through such Contracts have
been registered under the Securities Act of 1933 Act (the ``1933 Act'')
on Form N-4 (File No. 333-145064). Other than the subaccounts investing
in the Substituted Portfolio and the two other Credit Suisse
portfolios, all of the Separate Account VA-1 subaccounts are currently
available under the Separate Account VA-1 Contracts.
3. TC LIFE is the legal owner of the assets in Separate Account VA-
1. Pursuant to the Separate Account VA-1 Contracts and prospectuses, TC
LIFE reserves the right to substitute shares of one portfolio for
shares of another. The terms of the Separate Account VA-1 Contracts and
the prospectus for the Separate Account VA-1 Contracts also permit
Contract owners to transfer contract value among the subaccounts. TC
LIFE does not assess a transfer charge or limit the number of transfers
permitted per year, although TC LIFE does have in place market timing
policies and procedures that may operate to limit transfers.
4. TC LIFE established Separate Account VLI-1 under New York state
law on May 23, 2001. Separate Account VLI-1 meets the definition of a
``separate account'' under the Federal securities laws and is
registered with the Commission under the Act as a unit investment trust
(File No. 811-10393). Separate Account VLI-1 consists of 47
subaccounts, each investing in a different investment portfolio and
including subaccounts investing in both the Substituted Portfolio and
the Replacement Portfolio. The subaccount investing in the Substituted
Portfolio was closed to additional payments and transfers of contract
value on April 12, 2010. The assets of Separate Account VLI-1 support
Contracts (the ``Separate Account VLI-1 Contracts'') that offer the
Substituted Portfolio and the Replacement Portfolio as investment
options, and interests in Separate Account VLI-1 offered through such
Contracts have been registered under the 1933 Act on Form N-6 (File
Nos. 333-128699 and 333-151910). Other than the subaccounts investing
in the Substituted Portfolio and the two other Credit Suisse
portfolios, all of the Separate Account VLI-1 subaccounts are currently
available under the Separate Account VLI-1 Contracts.
5. TC LIFE is the legal owner of the assets in Separate Account
VLI-1. Pursuant to the Separate Account VLI-1 Contracts and
prospectuses, TC LIFE reserves the right to substitute shares of one
portfolio for shares of another. The terms of the Separate Account VLI-
1 Contracts and the prospectuses for the Separate Account VLI-1
Contracts also permit Contract owners to transfer contract value among
the subaccounts. TC LIFE currently does not assess a transfer charge or
limit the number of transfers permitted per year, although TC LIFE does
reserve the right to deduct a $25 charge for the thirteenth and each
additional transfer during a policy year. Transfers due to dollar cost
averaging, automatic account rebalancing, loans, changes in a
subaccount's investment policy, or the initial reallocation from a
money market subaccount do not count as transfers for the purpose of
assessing the transfer charge. Contract owners also must transfer at
least $250, or the total value in the allocation option being
transferred, if less. TC LIFE also has in place market timing policies
and procedures that may operate to limit transfers. TC LIFE also
imposes certain restrictions on transfers from the fixed account.
6. Credit Suisse Trust was organized on March 15, 1995 under the
laws of the Commonwealth of Massachusetts as a Massachusetts business
trust. It is registered under the Act as a open-end management
investment company (File No. 811-07261). Credit Suisse Trust currently
consists of three portfolios, one of which--the Commodity Return
Strategy Portfolio--is the Substituted Portfolio. The Credit Suisse
Trust issues a separate series of shares of beneficial interest in
connection with each portfolio and has registered such shares under the
1933 Act on Form N-1A (File No. 33-58125). Credit Suisse Asset
Management, LLC (``Credit Suisse Management'') serves as the investment
adviser to each portfolio of the Credit Suisse Trust.
7. The Prudential Series Fund is organized as a Delaware statutory
trust and is registered under the Act as an open-end management
investment company (File No. 811-03623). The Prudential Series Fund
currently consists of 19 separate portfolios, one of which--the Natural
Resources Portfolio--is the Replacement Portfolio. The Prudential
Series Fund issues a separate series of shares of beneficial interest
in connection with each portfolio and has registered such shares under
the 1933 Act on Form N-1A (File No. 2-80896). Prudential Investments
LLC (``P.I.''), a wholly-owned subsidiary of Prudential Financial,
Inc., serves as the investment adviser to each portfolio of The
Prudential Series Fund and receives an investment management fee from
each portfolio it manages.
8. Prudential Mutual Fund Management, Inc. (``PMFM''), the former
investment adviser to funds sponsored by Prudential Financial, Inc. and
its affiliates, obtained an order from the Commission pursuant to
Section 6(c) of

[[Page 33005]]

the Act exempting it from Section 15(a) of the Act and Rule 18f-2 under
the Act, with respect to subadvisory agreements (the ``Manager of
Managers Order'').\1\
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\1\ The Target Portfolio Trust and Prudential Mutual Fund
Management, Inc., Act Rel. No. 22215 (Sept. 11, 1996) (Order), File
No. 812-10208.
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9. The Manager of Managers Order applies not only to the specific
applicants but also to any future open-end management investment
company advised by PMFM or a person controlling, controlled by, or
under common control with PMFM, provided that such investment company
operates in substantially the same manner as the applicant investment
company and complies with the condition of the Manager of Managers
Order. More particularly, Applicants believe that the Manager of
Managers Order permits P.I. to enter into and materially amend
investment subadvisory agreements with respect to The Prudential Series
Fund without obtaining shareholder approval. For this reason, the
Applicants believe that the relief granted in the Manager of Managers
Order extends to the Natural Resources Portfolio.
10. Neither the Substituted Portfolio nor the Replacement Portfolio
nor their investment advisers are affiliated with the Applicants.
11. The following charts set out the investment objective of the
Substituted Portfolio and the Replacement Portfolio, as stated in their
respective prospectuses dated May 1, 2011.

------------------------------------------------------------------------
Substituted portfolio Replacement portfolio
------------------------------------------------------------------------
Credit Suisse Trust Commodity Prudential Series Fund Natural
Return Strategy Portfolio Resources Portfolio (Class II
Shares)

Investment Objective Investment Objective

Seeks total return relative to the Seeks long-term growth of capital.
performance of the Dow Jones-UBS
Commodity Index Total Return (``DJ-
UBS Index'').
------------------------------------------------------------------------

The following information sets out the current principal investment
strategies of the Substituted Portfolio and the Replacement Portfolio,
as stated in their respective prospectuses and/or Statements of
Additional Information (``SAI'') dated May 1, 2011.

Principal Investment Strategies Principal Investment Strategies

The Portfolio is designed to The Portfolio normally invests at
achieve positive total return least 80% of its net assets (plus
relative to the performance of the any borrowings made for investment
Dow Jones-UBS Commodity Index purposes) in common stocks and
Total Return (``DJ-UBS Index''). convertible securities of natural
The Portfolio intends to invest resource companies and securities
its assets in a combination of that are related to the market
commodity-linked derivative value of some natural resource.
instruments and fixed income Natural resource companies are
securities. The Portfolio gains companies that primarily own,
exposure to commodities markets by explore, mine, process or
investing in structured notes otherwise develop natural
whose principal and/or coupon resources, or supply goods and
payments are linked to the DJ-UBS services to such companies.
Index. Natural resources generally
The Portfolio may invest up to 25% include agricultural commodities,
of its total assets in a wholly precious metals, such as gold,
owned subsidiary of the Portfolio silver and platinum, ferrous and
formed in the Cayman Islands (the nonferrous metals, such as iron,
``Subsidiary''), which has the aluminum and copper, strategic
same investment objective as the metals such as uranium and
Portfolio and has a strategy of titanium, hydrocarbons such as
investing in commodity-linked swap coal and oil, timberland and
agreements and other commodity- undeveloped real property.
linked derivative instruments, The Portfolio seeks securities with
futures contracts on individual an attractive combination of
commodities, or a subset of valuation versus peers, organic
commodities and options on reserve and production growth, and
commodities. competitive unit cost structure.
The Portfolio invests in a Up to 20% of the Portfolio's total
portfolio of fixed income assets may be invested in
securities normally having an securities that are not asset-
average duration of one year or indexed or natural resource-
less, and emphasizes investment- related, including common stock,
grade fixed income securities.\2\ convertible stock, debt securities
The Portfolio is a non-diversified and money market instruments.
mutual fund portfolio, meaning the Up to 50% of the Portfolio's total
Portfolio may invest a relatively assets may be invested in foreign
high percentage of its assets in a equity and equity-related
small number of issuers.\3\ securities.
The Portfolio may also pursue the
following types of investment
strategies and/or invest in the
following types of securities: (i)
Alternative investment strategies--
including derivatives--to try and
improve the Portfolio's returns,
to protect its assets or for short-
term cash management. Derivatives
includes options, futures
contracts, swaps and swap options;
(ii) forward foreign currency
exchange contracts; (iii) purchase
securities on a when-issued or
delayed delivery basis; (iv) short
sales against-the-box; (v)
repurchase agreements. The
Portfolio may participate with
certain other portfolios of the
Fund in a joint repurchase account
under an order obtained from the
SEC; and (vi) illiquid securities.
Under normal circumstances, the
Portfolio may invest up to 20% of
its net assets in money market
instruments.

[[Page 33006]]

The Portfolio is a non-diversified
mutual fund portfolio, meaning the
Portfolio may invest a relatively
high percentage of its assets in a
small number of issuers.\4\ The
Portfolio will concentrate its
investments (i.e., will invest at
least 25% of its assets under
normal circumstance) in securities
of companies in the natural
resources group of industries.
------------------------------------------------------------------------

12. The following sets out the principal investment risks of the
Substituted Portfolio and the Replacement Portfolio, as stated in their
respective prospectuses and/or SAIs dated May 1, 2011.
---------------------------------------------------------------------------

\2\ While not identified as a principal investment strategy in
the prospectus, the Portfolio also may invest without limit in U.S.
dollar-denominated foreign securities and may invest up to 30% of
its assets in non-U.S. dollar denominated securities.
\3\ The Commodity Return Strategy Portfolio's investments will
be limited, however, in order to qualify as a ``regulated investment
company'' for purposes of the Internal Revenue Code. The Portfolio
has obtained a private letter ruling from the Internal Revenue
Service confirming that the income produced by certain types of
commodity-index linked structured notes constitutes qualifying
income for purposes of qualifying as a ``regulated investment
company.'' To qualify, the Portfolio complies with certain
requirements, including limiting its investments so that at the
close of each quarter of the taxable year (i) not more than 25% of
the market value of its total assets are invested in the securities
of a single issuer, and (ii) with respect to 50% of the market value
of its total assets, not more than 5% of the market value of its
total assets are invested in the securities of a single issuer and
the portfolio does not own more than 10% of the outstanding voting
securities of a single issuer.
\4\ The Natural Resources Portfolio may not purchase any
security (other than obligations of the U.S. government, its
agencies or instrumentalities) if, as a result of such purchase, 25%
or more of the Portfolio's total assets (determined at the time of
investment) would be invested in any one industry; provided,
however, that the Portfolio will concentrate its investment in
securities of companies in the natural resources group of
industries.
---------------------------------------------------------------------------

The Commodity Return Strategy Portfolio is subject to the following
principal investment risks:
Commodity Risk. The Portfolio's investment in commodity-
linked derivative instruments may subject the Portfolio to greater
volatility than investments in traditional securities, particularly if
the instruments involve leverage. The value of commodity-linked
derivative instruments may be affected by changes in overall market
movements, commodity index volatility, changes in interest rates, or
factors affecting a particular industry or commodity, such as drought,
floods, weather, livestock disease, embargoes, tariffs, and
international economic, political, and regulatory developments. Use of
leveraged commodity-linked derivatives creates an opportunity for
increased return but, at the same time, creates the possibility for
greater loss (including the likelihood of greater volatility of the
portfolio's net asset value), and there can be no assurance that the
portfolio's use of leverage will be successful.
Correlation Risk. Changes in the value of a hedging
instrument may not match those of the investment being hedged. In
addition, commodity-linked structured notes may be structured in a way
that results in the portfolio's performance diverging from the DJ-UBS
Index, perhaps materially. For example, a note can be structured to
limit the loss or the gain on the investment, which would result in the
portfolio not participating in declines or increases in the DJ-UBS
Index that exceed the limits.
Credit Risk. The issuer of a security or the counterparty
to a contract, including derivatives contracts, may default or
otherwise become unable to honor a financial obligation.
Derivatives Risk. Derivatives are financial contracts
whose value depends on, or is derived from, the value of an underlying
asset, reference rate, or index. The Portfolio typically uses
derivatives as a substitute for taking a position in the underlying
asset and/or as part of a strategy designed to reduce exposure to other
risks, such as interest rate or currency risk. The Portfolio may also
use derivatives for leverage. The Portfolio's use of derivative
instruments, particularly commodity-linked derivatives, involves risks
different from, or possibly greater than, the risks associated with
investing directly in securities and other traditional investments.
Derivatives are subject to a number of risks, such as commodity risk,
correlation risk, liquidity risk, interest-rate risk, market risk, and
credit risk. Also, suitable derivative transactions may not be
available in all circumstances and there can be no assurance that the
portfolio will engage in these transactions to reduce exposure to other
risks that would be beneficial.
Exposure Risk. There is a risk associated with investments
(such as derivatives) or practices (such as short selling) that
increase the amount of money the portfolio could gain or lose on an
investment. Exposure risk could multiply losses generated by a
derivative or practice used for hedging purposes. Such losses should be
substantially offset by gains on the hedged investment. However, while
hedging can reduce or eliminate losses, it can also reduce or eliminate
gains. To the extent that a derivative or practice is not used as a
hedge, the Portfolio is directly exposed to its risks. Gains or losses
from speculative positions in a derivative may be much greater than the
derivative's original cost. For example, potential losses from writing
uncovered call options and from speculative short sales are unlimited.
Extension Risk. An unexpected rise in interest rates may
extend the life of a fixed income security beyond the expected payment
time, typically reducing the security's value.
Focus Risk. The Portfolio will be exposed to the
performance of commodities in the DJ-UBS Index, which may from time to
time have a small number of commodity sectors (e.g., energy, metals or
agricultural) representing a large portion of the index. As a result,
the Portfolio may be subject to greater volatility than if the index
were more broadly diversified among commodity sectors.
Interest Rate Risk. Changes in interest rates may cause a
decline in the market value of an investment. With bonds and other
fixed-income securities, a rise in interest rates typically causes a
fall in values, while a fall in interest rates typically causes a risk
in values.
Liquidity Risk. Certain portfolio securities, such as
commodity-linked notes and swaps, may be difficult or impossible to
sell at the time and the price that the Portfolio would like. The
Portfolio may have to lower the price, sell other securities instead,
or forgo an investment opportunity. Any of these could have a negative
effect on portfolio management or performance.
Market Risk. The market value of a security may fluctuate,
sometimes rapidly and unpredictably. These fluctuations, which are
often referred to as ``volatility,'' may cause a security to be worth
less than it was worth at an earlier time. Market risk may affect a
single issuer, industry, commodity, sector of the economy, or the
market as a whole. Market risk is common to most investments,
including: stocks, bonds

[[Page 33007]]

and commodities, and the mutual funds that invest in them.
Non-diversified Status. The Portfolio is considered a non-
diversified investment company under the Act and is permitted to invest
a greater proportion of its assets in the securities of a smaller
number of issuers. As a result, the portfolio may be subject to greater
volatility with respect to its portfolio securities than a fund that is
diversified.
Subsidiary Risk. By investing in the Credit Suisse Cayman
Commodity Fund II, Ltd. (the ``Subsidiary''), the Portfolio is
indirectly exposed to the risks associated with the Subsidiary's
investments. The derivatives and other investments held by the
Subsidiary are generally similar to those that are permitted to be held
by the Portfolio and are subject to the same risks that apply to
similar investments if held directly by the Portfolio. There can be no
assurance that the investment objective of the Subsidiary will be
achieved. The Subsidiary is not registered under the Act and is not
subject to all the investor protections of the Act. However, the
Portfolio wholly owns and controls the Subsidiary, and the Portfolio
and the Subsidiary are both managed by Credit Suisse Asset Management,
LLC, making it unlikely that the Subsidiary will take action contrary
to the risks of the Portfolio and its shareholders. Changes in the laws
of the United States and/or the Cayman Islands could result in the
inability of the Portfolio and/or the Subsidiary to operate as it does
currently and could adversely affect the Portfolio.
Tax Risk. Any income the Portfolio derives from direct
investments in commodity-linked swaps or certain other commodity-linked
derivatives must be limited to a maximum of 10% of the portfolio's
gross income in order for the portfolio to maintain its pass through
tax status. The Portfolio has obtained a private letter ruling from the
Internal Revenue Service (the ``IRS'') confirming that the income
produced by certain types of structured notes constitutes ``qualifying
income'' under the Internal Revenue Code. In addition, the IRS has
issued a private letter ruling to the Portfolio confirming that income
derived from the Portfolio's investment in its Subsidiary will also
constitute qualifying income to the Portfolio. Based on such rulings,
the Portfolio seeks to gain exposure to the commodity markets primarily
through investments in commodity index-linked notes and, through
investments in the Subsidiary, commodity-linked swaps and commodity
futures.
Portfolio Turnover Risk. Active and frequent trading
increases transaction costs, which could detract from the portfolio's
performance.
CFTC Regulatory Risk. Regulatory changes could adversely
affect the portfolio by limiting its trading activities in futures and
increasing Fund expenses. On February 11, 2011, the Commodity Futures
Trading Commission (``CFTC'') published a rule proposal that would
limit the Fund's ability to use futures in reliance on certain CFTC
exemptions. If the new rule is adopted as proposed, the amended CFTC
exemption would limit the portfolio's use of futures to (i) bona fide
hedging transactions, as defined by the CFTC, and (ii) speculative
transactions, provided that the speculative positions do not exceed 5%
of the liquidation value of the portfolio. If the portfolio could not
satisfy the requirements for the amended exemption, the disclosure and
operations of the portfolio would need to comply with all applicable
regulations governing commodity pools. Other potentially adverse
regulatory initiatives could develop.
The Natural Resources Portfolio is subject to the following
principal investment risks:
Derivatives Risk. The use of derivatives involves a
variety of risks. There is a risk that the counterparty on a derivative
transaction will be unable to honor its financial obligation to the
Portfolio. Certain derivatives and related trading strategies create
debt obligations similar to borrowings and, therefore, create leverage
which can result in losses to a Portfolio that exceed the amount the
Portfolio originally invested. Certain exchange-traded derivatives may
be difficult or impossible to buy or sell at the time that the seller
would like or at the price that the seller believes the derivative is
currently worth. Privately negotiated derivatives may be difficult to
terminate or otherwise offset. Derivatives used for hedging may reduce
losses but also reduce or eliminate gains and cause losses if the
market moves in a manner different from that anticipated by the
Portfolio. Furthermore, commodity-linked derivative instruments may be
more volatile than the prices of investments in traditional equity and
debt securities.
Equity Securities Risk. There is a risk that the value or
price of a particular stock or other equity or equity-related security
owned by the Portfolio could go down. In addition to an individual
stock losing value, the value of the equity markets or a sector of
those markets in which the Portfolio invests could go down.
Expense Risk. The actual cost of investing in the
Portfolio may be higher than the expenses shown in the Annual Portfolio
Operating Expenses.
Foreign Investment Risk. Investment in foreign securities
generally involves more risk than investing in securities of U.S.
issuers. Changes in currency exchange rates may affect the value of
foreign securities held by the Portfolio. Securities of issuers located
in emerging markets tend to have volatile prices and may be less liquid
than investments in more established markets. Moreover, foreign markets
generally are more volatile than U.S. markets, are not subject to
regulatory requirements comparable to those in the U.S., and are
subject to differing custody and settlement practices. Foreign
financial reporting standards usually differ from those in the U.S.,
and foreign exchanges are smaller and less liquid than the U.S. market.
Political developments may adversely affect the value of a Portfolio's
foreign securities, and foreign holdings may be subject to special
taxation and limitations on repatriating investment proceeds.
Industry/Sector Risk. A portfolio that invests in a single
market sector or industry can accumulate larger positions in a single
issuer or an industry sector. As a result, the Portfolio's performance
may be tied more directly to the success or failure of a small group of
portfolio holdings.
Liquidity and Valuation Risk. From time to time, the
Portfolio may hold one or more securities for which there are no or few
buyers and sellers or which are subject to limitations on transfer. The
Portfolio also may have difficulty disposing of those securities at the
values determined by the Portfolio for the purpose of determining the
Portfolio's net asset value, especially during periods of significant
net redemptions of Portfolio shares.
Market and Management Risk. Markets in which the Portfolio
invests may experience volatility and go down in value, and possibly
sharply and unpredictably. All decisions by an adviser require judgment
and are based on imperfect information. Additionally, the investment
techniques, risk analysis and investment strategies used by an adviser
in making investment decisions for the Portfolio may not produce the
desired results.
Non-diversification Risk. As a non-diversified portfolio,
the Portfolio may hold larger positions in single issuers than a
diversified fund. Because the Portfolio is not required to meet
diversification requirements that are applicable to some funds, there
is an

[[Page 33008]]

increased risk that the Portfolio may be adversely affected by the
performance of relatively few securities or the securities of a single
issuer.
13. The following charts compare the investment management fees and
total operating expenses (before and after any waivers and
reimbursements) for the year ended December 31, 2010, expressed as an
annual percentage of average daily net assets, of the Substituted
Portfolio and the Replacement Portfolio.

------------------------------------------------------------------------
Replacement
Substituted portfolio
portfolio Credit Prudential Series
Suisse Trust Fund Natural
Commodity Return Resources portfolio
Strategy portfolio (class II)
------------------------------------------------------------------------
Investment Management Fees.. \5\ 0.50%........... 0.45%
Distribution and Service 0.25%............... 0.25%
(12b-1) Fee.
Administration Fees......... None................ 0.15%
Other Expenses.............. 0.34%............... 0.05%
Total Operating Expenses.... 1.09%............... 0.90%
Less Expense Waivers and N/A................. N/A
Reimbursements.
Total Net Operating Expenses 1.09%............... 0.90%
------------------------------------------------------------------------

14. The following charts compare the average annual total returns
of the Substituted Portfolio and the Replacement Portfolio for the one-
year, five-year, and ten-year (or since inception) periods ended
December 31, 2010.
---------------------------------------------------------------------------

\5\ Management fee of the Commodity Return Strategy Portfolio
and the Credit Suisse Cayman Commodity Fund II, Ltd. (the
``Subsidiary'').

------------------------------------------------------------------------
Substituted Replacement
portfolio Credit portfolio
Suisse Trust Prudential Fund
Commodity Return Series Natural
Strategy portfolio Resources portfolio
------------------------------------------------------------------------
Average Annual Total Return +16.66%............. +27.48%
for One Year.
Average Annual Total Return N/A................. 13.61%
for Five Years.
Average Annual Total Return 2.98%............... +20.25%
for Ten Years or, if less, (Date of Inception:. (Date of Inception:
Since Inception. February 28, 2006).. April 28, 2005)
------------------------------------------------------------------------

15. The following charts compare the levels of net assets (rounded
to the nearest thousand) of the Substituted Portfolio and the
Replacement Portfolio on December 31, 2010 and the prior four calendar
years, as well as the levels of net assets of the Separate Accounts
invested in the Substituted Portfolio for the same time period and the
percentage of the Substituted Portfolio's total net assets represented
by the investments of the Separate Accounts.
---------------------------------------------------------------------------

\6\ For the period February 28, 2006 (commencement of
operations) through December 31, 2006.

----------------------------------------------------------------------------------------------------------------
Substituted portfolio
--------------------------------------------------------- Replacement
Credit Suisse Trust Commodity Return Strategy portfolio portfolio
--------------------------------------------------------- Prudential Fund
Percent of Series Natural
Total separate portfolio total Resources
account assets net assets Total net assets portfolio total
invested in the represented by (in thousands) net assets (in
portfolio separate account thousands)
investment
----------------------------------------------------------------------------------------------------------------
On 12/31/2010....................... $1,671,571 1.34% $124,550 $1,360.056
On 12/31/2009....................... 1,713,589 1.58% 108,211 1,079,600
On 12/31/2008....................... 424,299 0.61% 69,919 677,400
On 12/31/2007....................... 21,813 0.04% 56,624 1,669,900
On 12/31/2006....................... 287 0.0002% \6\145,907 1,193,000
On 12/31/2005....................... N/A N/A N/A 1,016,300
----------------------------------------------------------------------------------------------------------------

16. Applicants represent that the Substitution is part of an
overall business goal of TC LIFE to make the Contracts more attractive
to Contract owners and to assure a consistency in the range of overall
investment options provided by the Contracts. Pursuant to this goal, TC
LIFE has engaged in a thorough review of the efficiencies and
structures of all of the investment options it offers under the
Contracts. This review involved an evaluation of the investment
objectives and strategies, asset sizes, expense ratios, investment
performance, investment process, and

[[Page 33009]]

investment teams responsible for the management of each investment
option, with a view to past performance as well as future expectations.
Based on this evaluation, TC LIFE has determined that the Substituted
Portfolio warrants replacement.
17. Applicants represent that TC LIFE reviewed all of the
underlying fund options with the goal of ensuring that Contract owners
would be provided with investment options under their Contracts
following the Substitution that are similar to the investment options
under their Contracts before the Substitution. Based in particular on a
better performance record and lower total expenses of the Replacement
Portfolio, TC LIFE believes that the adviser to the Replacement
Portfolio is better able to offer the potential for consistent above-
average performance for the Portfolio than is the adviser to the
Substituted Portfolio. The Replacement Portfolio also is considerably
larger than the Substituted Portfolio, thus offering better economies
of scale with a larger asset base over which to spread the various
portfolio costs ultimately passed on to Contract owners. As such, TC
LIFE believes that effecting the Substitution will provide Contract
owners with a Replacement Portfolio that has a comparable investment
objective to the Substituted Portfolio but is, overall, less expensive,
consistent with the desired asset class exposure, better positioned to
provide consistent above-average performance, and with greater
expectations for growth. Moreover, TC LIFE maintains that the
investment objective and policies of the Replacement Portfolio are
sufficiently similar to those of the Substituted Portfolio so that
Contract owners will have reasonable continuity in investment
expectations.
18. Applicants seek the Commission's approval under Section 26(c)
to engage in the substitution transaction described below. Pursuant to
its authority under the respective Contracts and the prospectuses
describing the same, and subject to the approval of the Commission
under Section 26(c) of the Act, TC LIFE proposes to substitute shares
of the Commodity Return Strategy Portfolio of the Credit Suisse Trust
for Class II Shares of the Natural Resources Portfolio of The
Prudential Series Fund.
19. Applicants represent that TC LIFE will effect the Substitution
as soon as practicable following the issuance of the requested order as
follows. As of the effective date of the Substitution (the ``Effective
Date''), shares of the Substituted Portfolio will be redeemed for cash
and that cash will be used to purchase shares of the Replacement
Portfolio. Redemption requests and purchase orders will be placed
simultaneously so that contract values will remain fully invested at
all times. All redemptions of shares of the Substituted Portfolio and
purchases of shares of the Replacement Portfolio will be effected in
accordance with Section 22(c) of the Act and Rule 22c-1 thereunder. The
Substitution will take place at relative net asset value as of the
Effective Date with no change in the amount of any Contract owner's
contract value or death benefit or in the dollar value of his or her
investments in any of the subaccounts.
20. Applicants represent that contract values attributable to
investments in the Substituted Portfolio will be transferred to the
Replacement Portfolio without charge (including sales charges or
surrender charges) and without counting toward the number of transfers
that may be permitted without charge. Contract owners will not incur
any additional fees or charges as a result of the Substitution, nor
will their rights or TC LIFE's obligations under the Contracts be
altered in any way, and the Substitution will not change Contract
owners' insurance benefits under the Contracts. All expenses incurred
in connection with the Substitution, including legal, accounting,
transactional, and other fees and expenses, including brokerage
commissions, will be paid by TC LIFE. In addition, the Substitution
will not impose any tax liability on Contract owners. The Substitution
will not cause the Contract fees and charges currently paid by existing
Contract owners to be greater after the Substitution than before the
Substitution. TC LIFE will not exercise any right it may have under the
Contracts to impose a transfer charge or restrictions on transfers
under the Contracts for the period beginning on the date the initial
application was filed with the Commission through at least thirty (30)
days following the Effective Date for transfers of contract value from
the subaccount investing in the Substituted Portfolio (before the
Substitution) or the Replacement Portfolio (after the Substitution) to
one or more other subaccount(s).\7\
---------------------------------------------------------------------------

\7\ One exception to this would be restrictions that TIAA-CREF
may impose to prevent or restrict ``market timing'' activities by
Contract owners or their agents.
---------------------------------------------------------------------------

21. The Applicants represent that they will not receive, for three
years from the date of the Substitution, any direct or indirect
benefits from the Replacement Portfolio, its advisors or underwriters
(or their affiliates), in connection with assets attributable to
Contracts affected by the Substitution, at a higher rate than
Applicants have received from the Substituted Portfolio, its advisors
or underwriters (or their affiliates), including without limitation
Rule 12b-1 fees, shareholder service, administration, or other service
fees, revenue sharing, or other arrangements in connection with such
assets. Applicants represent that the Substitution and the selection of
the Replacement Portfolio were not motivated by any financial
consideration paid or to be paid to TC LIFE or its affiliates by the
Replacement Portfolio, its advisors, underwriters, or their respective
affiliates.
22. The Applicants assert that the procedures to be implemented are
sufficient to assure that each Contract owner's cash values immediately
after the Substitution shall be equal to the cash value immediately
before the Substitution.
23. The Applicants represent that Existing Contract owners as of
the date the initial application was filed, and new Contract owners who
have purchased or who will purchase a Contract subsequent to that date
but prior to the Effective Date, have been or will be notified of the
proposed Substitution by means of a prospectus or prospectus supplement
for each of the Contracts (``Pre-Substitution Notice''). The Pre-
Substitution Notice:
States that the Applicants filed the application to seek
approval of the Substitution;
Sets forth the anticipated Effective Date;
Explains that contract values attributable to investments
in the Substituted Portfolio would be transferred to the Replacement
Portfolio on the Effective Date; and
States that, from the date the initial application was
filed with the Commission through the date thirty (30) days after the
Substitution, Contract owners may transfer contract value from the
subaccount investing in the Substituted Portfolio (before the
Substitution) or the Replacement Portfolio (after the Substitution) to
one or more other subaccount(s) without a transfer charge and without
that transfer counting against their contractual transfer limitations.
Further, all Contract owners will have received a copy of the most
recent prospectus for the Replacement Portfolio prior to the
Substitution.
24. Finally, the Applicants represent that within five (5) days
following the Substitution, Contract owners affected by the
Substitution will be notified in writing that the Substitution was
carried

[[Page 33010]]

out. This notice will restate the information set forth in the Pre-
Substitution Notice, and will also explain that the contract values
attributable to investments in the Substituted Portfolio were
transferred to the Replacement Portfolio without charge (including
sales charges or surrender charges) and without counting toward the
number of transfers that may be permitted without charge.
25. Applicants represent that Section 26(c) of the Act prohibits
any depositor or trustee of a unit investment trust that invests
exclusively in the securities of a single issuer from substituting the
securities of another issuer without the approval of the Commission.
Section 26(c) provides that such approval shall be granted by order of
the Commission, if the evidence establishes that the substitution is
consistent with the protection of investors and the purposes of the
Act. Section 26(c) was intended to provide for Commission scrutiny of
proposed substitutions which could, in effect, force shareholders
dissatisfied with the substitute security to redeem their shares,
thereby possibly incurring a loss of the sales load deducted from
initial premium, an additional sales load upon reinvestment of the
proceeds of redemption, or both.\8\ The section was designed to
forestall the ability of a depositor to present holders of interest in
a unit investment trust with situations in which a holder's only choice
would be to continue an investment in an unsuitable underlying
security, or to elect a costly and, in effect, forced redemption. For
the reasons described below, the Applicants submit that the
Substitution meets the standards set forth in Section 26(c) and that,
if implemented, the Substitution would not raise any of the
aforementioned concerns that Congress intended to address when the Act
was amended to include this provision. In addition, the Applicants
submit that the proposed Substitution meets the standards that the
Commission and its Staff have applied to substitutions that have been
approved in the past.
---------------------------------------------------------------------------

\8\ House Comm. Interstate Commerce, Report of the Securities
and Exchange Commission on the Public Policy Implications of
Investment Company Growth, H.R. Rep. No. 2337, 89th Cong. 2d Session
337 (1966).
---------------------------------------------------------------------------

26. Applicants represent that the replacement of the Substituted
Portfolio with the Replacement Portfolio is consistent with the
protection of Contract owners and the purposes fairly intended by the
policy and provisions of the Act and, thus, meets the standards
necessary to support an order pursuant to Section 26(c) of the Act.
27. The Applicants assert that the investment objective and
principal investment strategies of the Replacement Portfolio are
substantially similar to those of the Substituted Portfolio. The
Commodity Return Strategy Portfolio seeks total return relative to the
performance of the DJ-UBS Index, and the Natural Resources Portfolio
seeks long-term growth of capital. Applicants submit that these are
substantially similar investment objectives and, while the Portfolios'
principal investment strategies are somewhat different, there is
nonetheless a high correlation between the two sets of investment
strategies. The Commodity Return Strategy Portfolio is designed to
achieve positive total return relative to the performance of the DJ-UBS
Index by investing in commodity-linked derivative instruments and fixed
income securities, whereas the Natural Resources Portfolio normally
invests at least 80% of its net assets in common stocks and convertible
securities of natural resource companies and securities that are
related to the market value of some natural resource. However, the
companies in which the Natural Resources Portfolio invests derive the
vast majority of their respective revenue from commodities. In other
words, the valuation of the companies in which the Natural Resources
Portfolio invests move directly with the underlying commodities that
represent these firms' primary businesses. As such, there is a high
correlation between the Natural Resources Portfolio's performance to
the price changes in the DJ-UBS Index which underlies the Commodity
Return Strategy Portfolio's investment strategy. This high correlation
is demonstrated by comparing the performance of investments in natural
resources companies (as measured by the S&P North American Natural
Resources Index) and commodities (as measured by DJ-UBS Index), for
which the correlation (as reported by Morningstar) exceeds 80% over
both the trailing three-year and five-year periods. Given the high
correlation between the performance of the Natural Resources Portfolio
and the Commodity Return Strategy Portfolio, the Applicants believe
that the Natural Resources Portfolio is a suitable replacement for the
Commodity Return Strategy Portfolio. While the holdings of companies in
which the Natural Resources Portfolio invests, with their resultant
capital structures, tax exposures, and idiosyncratic risks, do not
provide a perfect correlation to a spot commodities index, Applicants
believe the same is true with a portfolio comprised of structured notes
tied to commodities futures. Accordingly, the Applicants believe that
the close approximation of the Natural Resources Portfolio to the
commodities sector exposure supports a determination that the Natural
Resources Portfolio will provide Contract owners currently invested in
the Commodity Return Strategy Portfolio an acceptable level of exposure
to the commodities sector and is a reasonable substitution for the
Commodity Return Strategy Portfolio.
28. The Applicants represent that, although not identical, the
principal investment risks of the Natural Resources Portfolio are
comparable to those of the Commodity Return Strategy Portfolio. Both
Portfolios use derivatives, exposing each Portfolio to a number of
specific derivative-related risks such as the possibility that the
counterparty to the transaction is unable to honor its financial
obligation; using derivatives may also subject each Portfolio to other
more general risks including commodity risk, correlation risk,
liquidity risk, interest-rate risk, market risk, and credit risk.
Because both Portfolios may invest in foreign securities, they also are
subject to increased risk relating to currency exchange rate
fluctuations, price volatility, adverse political developments, etc.
Both Portfolios also are subject to market risk relating to increased
and/or unpredictable fluctuations in the market value of the securities
in which they invest, as well as to liquidity risk. Finally, both the
Natural Resources Portfolio and the Commodity Return Strategy Portfolio
are non-diversified investment companies, and therefore may invest in
fewer issuers and be more greatly affected by the performance of
relatively few securities. Further, the Applicants do not believe that
overall the Natural Resources Portfolio is exposed to greater risk than
the Commodity Return Strategy Portfolio, despite the fact that certain
enumerated risks of the Natural Resources Portfolio are not explicitly
detailed as principal investment risks in the prospectus for the
Commodity Return Strategy Portfolio. For example, the Applicants
believe that the Commodity Return Strategy Portfolio, like the Natural
Resources Portfolio, is subject to commodity price risk, expense risk,
industry/sector risk, and valuation risk--all typical risks that are
generally present for most portfolios that invest in the commodity and
natural resources asset categories. Moreover, the Natural Resources
Portfolio is not subject to the specific

[[Page 33011]]

derivative, tax, and focus risks the Commodity Return Strategy
Portfolio is exposed to as a result of the latter's primary investment
in commodity-linked instruments. Lastly, because the Commodity Return
Strategy Portfolio invests in the Credit Suisse Cayman Commodity Fund
II, Ltd., the Portfolio also is indirectly exposed to the risks
associated with that portfolio's investments.
29. The Applicants represent that the investment management fee of
the Natural Resources Portfolio is lower than that of the Commodity
Return Strategy Portfolio, and each Portfolio imposes a 12b-1 fee of
0.25%. Moreover, total operating expenses of the Natural Resources
Portfolio were lower than those of the Commodity Return Strategy
Portfolio as of December 31, 2010.
30. The Applicants represent that the Natural Resources Portfolio
outperformed the Commodity Return Strategy Portfolio for the one-year
period ending December 31, 2010 and since inception. In addition, the
assets of the Natural Resources Portfolio have been consistently (and
significantly) higher than those of the Commodity Return Strategy
Portfolio as of December 31, 2010 and for each of the prior four
calendar years.
31. For purposes of the approval sought pursuant to Section 26(c)
of the Act, the Applicants represent that the Substitution will not be
completed unless all of the following conditions are met.
The Commission shall have issued an order approving the
Substitution under Section 26(c) of the Act as necessary to carry out
the transactions described in the Application.
Each Contract owner will have been sent (i) prior to the
Effective Date, a copy of the effective prospectus for the Replacement
Portfolio, (ii) prior to the Effective Date, a Pre-Substitution Notice
describing the terms of the Substitution and the rights of the Contract
owners in connection with the Substitution, and (iii) within five (5)
days after the Substitution occurs, a notice informing Contract owners
affected by the Substitution that the Substitution was carried out
(this notice will restate the information set forth in the Pre-
Substitution Notice, and also explain that the contract values
attributable to investments in the Substituted Portfolio were
transferred to the Replacement Portfolio without charge (including
sales charges or surrender charges) and without counting toward the
number of transfers that may be permitted without charge).
The Applicants have satisfied themselves that (i) the
Contracts allow the substitution of the Portfolios in the manner
contemplated by the Substitution and related transactions described
herein, (ii) the transactions can be consummated as described in the
Application under applicable insurance laws, and (iii) any applicable
regulatory requirements in each jurisdiction where the Contracts are
qualified for sale have been complied with to the extent necessary to
complete the transaction.
32. The Applicants acknowledge that reliance on exemptive relief,
if granted, depends upon compliance with all of the representations and
conditions set forth in the Application.

Conclusion

Applicants assert that, for all the reasons stated in the
Applicant, the Substitution is consistent with the protection of
investors and the purposes fairly intended by the policy of the
Contracts and provisions of the Act and that the requested order should
be granted.

For the Commission, by the Division of Investment Management
pursuant to delegated authority.
Cathy H. Ahn,
Deputy Secretary.
[FR Doc. 2011-13995 Filed 6-6-11; 8:45 am]
BILLING CODE 8011-01-P

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