[Federal Register Volume 80, Number 146 (Thursday, July 30, 2015)]
[Notices]
[Pages 45568-45572]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-18635]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-75517; File No. SR-NASDAQ-2015-082]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing of Proposed Rule Change To Introduce an Additional 
Data Element to the IPO Indicator Service

July 24, 2015.
    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 July 15, 2015, The NASDAQ Stock Market LLC (``Nasdaq'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission'') the proposed rule change as described in 
Items I, II, and III, below, which Items have been prepared by the 
Exchange. The Commission is publishing this notice to solicit comments 
on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of the 
Substance of the Proposed Rule Change

    The Exchange proposes to introduce an additional data element to 
its IPO Indicator Service. The text of the proposed rule change is 
available on the Exchange's Web site at http://nasdaq.cchwallstreet.com, at the principal office of the Exchange, and 
at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange 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. The Exchange 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
    Nasdaq is proposing to introduce an additional data element--to be 
known as the ``IPO Book Viewer''--to its IPO Indicator Service, which 
currently assists Nasdaq Participants in monitoring the Orders they 
have entered for execution in the Nasdaq Halt Cross for an IPO. The 
Nasdaq Halt Cross is an auction process designed to provide an orderly, 
single-priced opening of securities subject to an intraday halt, 
including securities that are the subject of an IPO. Prior to the 
execution of the Nasdaq Halt Cross for an IPO (the ``IPO Cross''), 
Participants enter Orders eligible for participation in the IPO Cross, 
and Nasdaq disseminates certain information regarding buying and 
selling interest entered and indicative execution price information, 
with such information known collectively as the Net Order Imbalance 
Indicator or ``NOII''. The NOII is disseminated every five seconds 
during a period prior to the completion of the IPO Cross, in order to 
provide Participants with information regarding the possible price and 
volume of the IPO Cross execution. The NOII information includes, among 
other things, the Current Reference Price,\3\ which is the price at 
which the IPO Cross would occur if it executed at the time of the 
NOII's dissemination. The IPO Indicator Service in turn provides a 
Participant with information about the number of shares of its Orders 
that would execute in the IPO Cross at the Current Reference Price.\4\ 
The IPO Cross executes and regular market trading commences in the IPO 
security when the designated representative of the underwriting 
syndicate for the IPO informs Nasdaq that the IPO security is ready to 
commence trading and the parameters of the IPO Cross pass validation 
checks pertaining to the price of the execution and the execution of 
all entered market Orders.\5\ The representative of the underwriting 
syndicate that serves this function--usually the lead underwriter--also 
serves as the stabilizing agent for the IPO.
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    \3\ See Rule 4753(a)(3)(A).
    \4\ The IPO Indicator Service is available either as a feature 
of the Nasdaq Workstation poduct, or through a standalone product 
known as the Nasdaq IPO Workstation. See Rule 7015.
    \5\ See Rule 4120(c)(8).
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    Following the execution of the IPO Cross, the stabilizing agent 
engages in permissible ``stabilizing'', as defined in Rule 100 under 
SEC Regulation M,\6\ for the IPO. As provided by Rule 104 under 
Regulation M,\7\ stabilizing of an offering is permitted only to the 
extent that the person engaging in the activity complies with 
limitations described in that rule. These limitations include a 
requirement that stabilizing must be solely for the purpose of 
preventing or retarding a

[[Page 45569]]

decline in the market price of the security, limitations on the maximum 
price of a stabilizing bid, and a requirement that a syndicate engaging 
in an offering maintain no more than one stabilizing bid at the same 
price and time in a given market.
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    \6\ 17 CFR 242.100.
    \7\ 17 CFR 242.104.
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    As discussed above, the stabilizing agent has responsibility for 
monitoring the submission of buying and selling interest into the IPO 
Cross and informing Nasdaq when the IPO security is ready to initiate 
trading. In addition, following the completion of the IPO Cross, the 
stabilizing agent may enter a stabilizing bid into the market for the 
purpose of supporting the price of the IPO security during the 
remainder of its first day of trading. Thus, the stabilizing agent 
stands ready during the course of the day to commit its capital in 
support of the IPO security, buying from investors that wish to sell 
the IPO security to realize short-term gains (or to minimize short-term 
losses). The stabilizing agent thereby serves to dampen volatility in 
the IPO security and promote the maintenance of a fair and orderly 
market. Because the function performed by the stabilizing agent is 
unique on the day of the IPO, Nasdaq has concluded that providing 
additional information about pre-opening interest in the stock to the 
stabilizing agent will help it to optimize the opening of the stock and 
manage its own risk, thereby assisting it in promoting a fair and 
orderly market for the IPO security. Accordingly, Nasdaq is proposing 
to introduce the IPO Book Viewer, a specialized data product that will 
be made available solely to the stabilizing agent.
    Access to the IPO Book Viewer data element will be limited through 
a secure entitlement process to designated individuals employed by the 
stabilizing agent. On the day of an IPO, beginning with the start of 
the Display-Only Period described in Nasdaq Rule 4120 and ending upon 
the completion of the IPO Cross for an IPO security, the IPO Book 
Viewer will display aggregated buying and selling interest information 
for the IPO security, reflecting all Orders on the Nasdaq Book, and 
consisting of the total number of Orders and the aggregate size of all 
Orders, grouped in $0.05, $0.10, or $0.25 price increments. The pricing 
increments may be adjusted by the stabilizing agent during the period 
that the IPO Book Viewer is available.\8\ Thus, for example, if the IPO 
Book Viewer was configured to show $0.05 increments and the Nasdaq Book 
had 100 Orders to buy with a size of 200 shares each at each price from 
$39.99 to $39.95; and 100 Orders to buy with a size of 100 shares each 
at each price from $39.94 to $39.90, the IPO Book Viewer would show 500 
Orders with an aggregate size of 100,000 shares for the $39.99 to 
$39.95 price band; and 500 Orders with an aggregate size of 50,000 
shares for the $39.94 to $39.90 price band. The IPO Book Viewer would 
also show comparable information with respect to Orders to sell. The 
aggregated information provided through this data element would include 
all Orders and Size, including Orders with a Time-in-Force of Immediate 
or Cancel (i.e., Orders designated to execute in the IPO Cross, if 
possible, or to cancel if not); Orders with Reserve Size; and Non-
Displayed Orders. The placement of the price bands will be 
standardized, beginning at $0. Thus, for example, a user selecting 
$0.05 increments would always see Orders priced from $20.00 to $20.04 
and from $20.05 to $20.09, but could not modify the starting point of 
the price band to see Orders priced from $20.01 to $20.05. Information 
provided through the IPO Book Viewer will be updated every five 
seconds, along with updates to the NOII.
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    \8\ However, the stabilizing agent cannot view multiple 
increments at the same time. For example, the viewer could view all 
$0.05 increments or all $0.25 increments, but could not view a $0.05 
increment for prices near the NOII and wider increments for prices 
further away.
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    The IPO Book Viewer will provide no information other than that 
described above, unless Nasdaq submits a proposed rule change to add 
additional data to it. In particular, the IPO Book Viewer will not 
provide any information regarding IOC or Non-Displayed Orders or 
Reserve Size other than in the aggregated format described above, and 
will not provide any information regarding the identity of Participants 
posting Orders.
    Nasdaq believes that providing this information to the stabilizing 
agent will provide the stabilizing agent with insights into the scope 
of demand for, and supply of, the IPO Security, in a manner that will 
allow it to make more informed decisions about the appropriate time to 
initiate the opening of the IPO security through the IPO Cross. In 
addition, the information will allow the stabilizing agent to respond 
in a more informed way to questions from its customers and other 
participants regarding expectations that an Order to buy or sell with a 
stated price and size may be executable in the IPO Cross. Finally, the 
information will assist the stabilizing agent in making decisions about 
the appropriate level of capital to commit to support the IPO security 
once trading commences.
    Once the IPO Cross executes, the IPO Book Viewer will cease to be 
available, both with respect to the state of the Nasdaq Book during the 
continuous market and with respect to retrospective information about 
the state of the Nasdaq Book leading up to the IPO Cross. Thus, the 
stabilizing agent will not be provided with any information not 
available to other market participants once continuous market trading 
in the IPO security commences.
    Nasdaq believes that providing the information contained in the IPO 
Book Viewer is not a novel proposal, but rather is similar to 
established New York Stock Exchange (``NYSE'') practices with respect 
to the flow of information to market participants during an IPO. 
Currently, as provided in NYSE Rule 104, the Designated Market Maker 
(``DMM'') for a security has access to aggregated and order-specific 
information about securities for which it is the DMM, not only in the 
process of opening an IPO but at all times throughout the day of an IPO 
and on subsequent days. Moreover, the DMM is permitted to share this 
information with floor brokers; such sharing is subject to no 
restriction with respect to aggregated information, while the sharing 
of order-specific information must be made ``in response to a specific 
request.'' When an IPO is being conducted at NYSE, the DMM therefore 
has access to aggregated order book information and is free to share it 
with the floor broker for the firm acting as stabilizing agent for the 
IPO. Using this information, the DMM and the stabilizing agent 
collaborate to determine when the IPO security should commence trading; 
the stabilizing agent may use the information to respond to requests 
from its customers and others regarding expectations about the 
commencement of trading; and the stabilizing agent may use the 
information to inform decisions about committing capital in support of 
the IPO security. In fact, information from the DMM remains available 
not only prior to the commencement of trading, but throughout the 
trading day.
    While Nasdaq's market structure differs in significant respects 
from NYSE's, Nasdaq believes that the IPO Book Viewer will allow it to 
provide benefits to stabilizing agents for IPOs conducted on Nasdaq 
comparable to those provided for IPOs on NYSE, without altering the 
competing market maker model that Nasdaq employs. In the time before 
its IPO Cross, Nasdaq possesses order book information comparable to 
the information transmitted by NYSE to a DMM prior to the commencement 
of trading in an IPO security on NYSE. Thus, the IPO Book Viewer will 
allow Nasdaq to share with the stabilizing agent information that is

[[Page 45570]]

comparable to the information shared by NYSE with the DMM and by the 
DMM with the stabilizing agent for a NYSE IPO.
    In approving NYSE Rule 104 in its current form, the Commission did 
not express any concerns regarding the availability of aggregated order 
information of the sort that would be provided through the IPO Book 
Viewer; rather, the Commission analyzed the potential for abuse 
associated with the DMM sharing disaggregated order information, 
because some of this order-specific information was available solely to 
the DMM.\9\ Because Nasdaq is not proposing that the IPO Book Viewer 
will contain any disaggregated order information, the concerns 
analyzed, and ultimately resolved in favor of the NYSE, by the 
Commission are simply not present in the case of the IPO Book Viewer.
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    \9\ Securities Exchange Act Release No. 71175 (December 23, 
2013), 78 FR 79534 (December 30, 2013) (SR-NYSE-2013-21; SR-NYSEMKT-
2013-25).
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    Nevertheless, since the aggregated information provided through the 
IPO Book Viewer is unique and directly available only to the 
stabilizing agent, Nasdaq believes that it is appropriate to adopt 
safeguards in order to ensure that the aggregated information is not 
misused. Accordingly, Nasdaq's proposed rule will require the 
stabilizing agent receiving the IPO Book Viewer to maintain and enforce 
written policies and procedures reasonably designed to achieve the 
following purposes:
     Restrict electronic access \10\ to aggregated information 
only to associated persons of the stabilizing agent who need to know 
the information in connection with establishing the opening price of an 
IPO security and stabilizing the IPO security;
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    \10\ As discussed below, electronic access to the IPO Book 
Viewer will be available on a displayed basis only.
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     Except as may be required for purposes of maintaining 
books and records for regulatory purposes,\11\ prevent the retention of 
aggregated information following the completion of the IPO Cross for 
the IPO security; and
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    \11\ See, e.g., SEC Rule 17a-4(a)(4), 17 CFR 240.17a-4(a)(4).
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     Prevent persons with access to aggregated information from 
engaging in transactions in the IPO security other than transactions in 
the IPO Cross; transactions on behalf of a customer; or stabilizing. 
Thus, for example, the stabilizing agent or its affiliates would not be 
permitted to use the information to engage in proprietary trading other 
than in support of bona fide stabilizing activity.
    However, for the avoidance of doubt regarding appropriate uses of 
the aggregated information, the proposed rule will also provide that 
nothing contained in the rule shall be construed to prohibit the member 
acting as the stabilizing agent from (i) engaging in stabilizing 
consistent with that role, or (ii) using the information provided from 
the IPO Book Viewer to respond to inquiries from any person, including, 
without limitation, other members, customers, or associated persons of 
the stabilizing agent, regarding the expectations of the member acting 
as the stabilizing agent with regard to the possibility of executing 
stated quantities of an IPO security at stated prices in the IPO Cross. 
Nasdaq believes that these permitted uses are entirely consistent with 
established practices at NYSE, under which the DMM may display 
aggregated and certain unique, order-specific disaggregated information 
to the floor broker acting as stabilizing agent, who is then free to 
discuss this information with other members, customers, and associated 
persons of the stabilizing agent.
    The aggregated information provided through the IPO Book Viewer 
will be available solely for display on the screen of a computer for 
which an entitlement has been provided by Nasdaq. Under no 
circumstances may a member redirect aggregated information to another 
computer or reconfigure it for use in a non-displayed format, 
including, without limitation, in any trading algorithm. If a member 
becomes aware of any violation of the restrictions contained in the 
proposed rule, it must report the violation promptly to Nasdaq.
    The IPO Indicator Service is currently provided free of charge 
through the IPO Workstation, and at no additional charge to users of 
the Nasdaq Workstation. Although Nasdaq may, in the future, institute a 
charge for the IPO Indicator Service, it is not proposing a fee at this 
time. Accordingly, the additional IPO Book Viewer element would 
likewise be provided free of charge at this time. The proposed rule 
change also adds to Rule 7015 definitions of ``IPO security'', 
``stabilizing'', ``stabilizing agent'', ``IPO Indicator Service'', and 
``IPO Book Viewer''. The added definitions are intended to promote a 
clear understanding of the rule text by delineating the products 
addressed by the rule and the scope of activities to which they 
pertain.
2. Statutory Basis
    Nasdaq believes that the proposed rule change is consistent with 
the provisions of section 6 of the Act,\12\ in general, and with 
section 6(b)(5) of the Act \13\ in particular, in that the proposal is 
designed to prevent fraudulent and manipulative acts and practices, to 
promote just and equitable principles of trade, to foster cooperation 
and coordination with persons engaged in regulating, clearing, 
settling, processing information with respect to, and facilitating 
transactions in securities, to remove impediments to and perfect the 
mechanism of a free and open market and a national market system, and, 
in general, to protect investors and the public interest. Nasdaq 
further believes that the introduction of the IPO Book Viewer element 
without a fee at this time is consistent with sections 6(b)(4) and (5) 
of the Act,\14\ in that it provides for the equitable allocation of 
reasonable dues, fees and other charges among recipients of Nasdaq data 
and is not designed to permit unfair discrimination between them.
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    \12\ 15 U.S.C. 78f.
    \13\ 15 U.S.C. 78f(b)(5).
    \14\ 15 U.S.C. 78f(b)(4), (5).
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    Nasdaq believes that the proposed rule change will promote the 
goals of the Act by assisting the stabilizing agent for an IPO security 
in promoting a fair and orderly market. Specifically, by providing 
unique, aggregated information concerning all Orders on the Nasdaq Book 
prior to the commencement of an IPO Cross, the IPO Book Viewer will 
give the stabilizing agent information that will assist it in achieving 
a range of goals. Specifically, by being able to share aggregated 
information with other members and customers, the stabilizing agent 
will enable greater participation in the IPO Cross because it will be 
able to provide more certain information about the ability of investors 
to execute Orders at particular sizes and prices. Moreover, being able 
to compare information about potential interest in participating in the 
IPO Cross with more detailed information about the state of the Nasdaq 
Book will enable the stabilizing agent to determine with more certainty 
the appropriate time to allow the IPO Cross to execute. Finally, having 
greater knowledge about the range of trading interest in the Nasdaq 
Book prior to the execution of the IPO Cross will enable the 
stabilizing agent to make more informed decisions about the extent of 
capital it may need to commit after the commencement of trading in 
order to stabilize the price of the IPO security

[[Page 45571]]

and thereby dampen volatility that might undermine investor confidence.
    Nasdaq further believes that the restrictions it proposes to impose 
on the use of the IPO Book Viewer will protect against possible misuse 
of the provided information. Notably, the information will be provided 
only prior to the completion of the IPO Cross and may not be retained 
thereafter, except to the extent necessary for record-retention 
purposes. The information will be disseminated in a display format only 
and may not be redirected or reconfigured for non-display usage (such 
as usage by a trading algorithm). Moreover, electronic access to the 
information will be available only to certain designated individuals 
with a role in conducting stabilizing activities, and persons with 
access may not engage in transactions other than stabilizing or 
transactions in the IPO Cross or on behalf of a customer. Although the 
Commission has not expressed any concerns about the availability of 
aggregated information to DMMs and floor brokers (including stabilizing 
agents) with whom they share such information, Nasdaq believes that the 
safeguards it proposes around the use of such aggregated information by 
its members will provide added assurance to members and the investing 
public that the IPO Book Viewer will not be misused.
    Finally, Nasdaq notes that although the IPO Book Viewer will be 
available only to stabilizing agents, this limitation is consistent 
with the protection of investors because the stabilizing agent plays a 
unique role on the day of an IPO because it must decide when the IPO 
security should commence trading and must commit capital in support of 
the IPO security once trading begins. Because the IPO Book Viewer will 
assist the stabilizing agent in performing these functions, which are 
performed by no other broker, Nasdaq believes that it is reasonable to 
limit access to the IPO Book Viewer to the stabilizing agent. Moreover, 
because the IPO Book Viewer will cease to be available once regular 
trading in the IPO security commences and the information provided 
therein will quickly become stale, Nasdaq does not believe that access 
to the information will provide the stabilizing agent with any unfair 
advantage.
    Nasdaq believes that the proposal to add certain defined terms to 
Rule 7015 is consistent with the Act because the definitions are 
intended to promote a clear understanding of the rule text by 
delineating the products addressed by the rule and the scope of 
activities to which they pertain. Nasdaq further believes that the 
proposal to make the IPO Book Viewer available to eligible recipients 
at no additional charge is reasonable because it will not result in any 
increase in the costs incurred by a stabilizing agent to receive the 
additional information. Nasdaq further believes that the proposal is 
consistent with an equitable allocation of fees and not unfairly 
discriminatory because additional information is being provided to a 
limited group of potential users in order to assist in the promotion of 
fair and orderly markets during an IPO. Accordingly, the absence of an 
additional fee is designed to encourage eligible members to accept the 
information in order to ensure that the goals of the proposal are 
advanced to the greatest extent possible.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act. In fact, Nasdaq believes 
that the proposal will help to redress an anti-competitive disparity 
that exists at present due to the availability of order book 
information to stabilizing agents conducting IPOs on NYSE through the 
DMM. Given that the proposal will result in a stabilizing agent on 
Nasdaq receiving less information than is available on NYSE, and that 
the usage of the information will be subject to greater restrictions, 
Nasdaq does not believe that there can be any reasonable objection to 
the proposal on competitive grounds.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    No written comments were either solicited or received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 45 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the Exchange consents, the Commission shall: (a) By order approve 
or disapprove such proposed rule change, or (b) institute proceedings 
to determine whether the proposed rule change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-NASDAQ-2015-082 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-NASDAQ-2015-082. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549, on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available 
for inspection and copying at the principal offices of the Exchange. 
All comments received will be posted without change; the Commission 
does not edit personal identifying information from submissions. You 
should submit only information that you wish to make available 
publicly. All submissions should refer to File Number SR-NASDAQ-2015-
082, and should be submitted on or before August 20, 2015.


[[Page 45572]]


    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(12).
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Robert W. Errett,
Deputy Secretary.
[FR Doc. 2015-18635 Filed 7-29-15; 8:45 am]
 BILLING CODE 8011-01-P